Roshan Kumar Paswan vs The State Of Jharkhand
2023 Latest Caselaw 1780 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Cr. Appeal (D.B.) No. 206 of 2023
Roshan Kumar Paswan              ....  .... Appellant
                    Versus
The State of Jharkhand               ....    .... Respondent
                    --------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellant : Mr. R.S.Mazumdar, Sr. Advocate.

                   :     Mr. Santosh Kumar, Advocate.
For the Respondent :     Mrs. Shweta Singh, A.P.P.
                   --------
Order No.05/dated 27.04.2023
Per Sujit Narayan Prasad J:

I.A. No. 3428 of 2023

The instant Interlocutory Application has been filed

under Section 389 (1) of the Code of Criminal Procedure for

suspension of sentence dated 22.12.2022 passed by the learned

Special Judge (POCSO Act), Bokaro in Special POCSO Case No.

99 of 2019 whereby and whereunder the appellant has been

sentenced to undergo Rigorous Imprisonment of 7 (seven)

years and a fine of Rs.5,000/- for having committed the

offence punishable under Section 366A of the IPC. In default

of payment of fine, the appellant will have to undergo S.I. of 3

months. The appellant has further been sentenced to undergo

Rigorous Imprisonment of 20 (Twenty) years and a fine of

Rs. 20,000/- for having committed the offence punishable

under Section 6 of the POCSO Act. In default of payment of

fine he will have to undergo simple imprisonment of 6 (six)

months.

Mr. R.S. Mazumdar, learned Sr. Counsel appearing

for the appellant assisted by Mr. Santosh Kumar, Advocate has

submitted that the judgment of conviction made under Section

366A, 376 (2) (n) of the I.P.C. and Section 6 of the POCSO Act

cannot be said to be conclusively proved due to the reason that

the victim girl admittedly was at the approaching age of 18 years

and as such the making the provision of POCSO Act under

Section 4/5 the learned trial court has erred without taking into

consideration the vital issue of the age of the victim. Such

submission has been made that if the victim girl is approaching

the age of 18 years having short of three months only hence it

will be presumed by taking one year plus minus to be major.

Further argument has been advanced by referring to

the testimony of the victim girl along with the statement

recorded under Section 164 of the Cr.P.C. wherein the

contradiction has come.

It has been submitted that it would be evident from

the testimony as recorded in course of trial of the victim girl

read with the statement recorded under Section 164 of Cr.P.C.

it would be evident that the victim girl on her own wish was

along with the appellant and hence it cannot be said to have the

commission of offence under Section 366A, 376 (2) (n) of the

I.P.C. and Section 6 of the POCSO Act.

The learned Sr. Counsel on the basis of the aforesaid

fact has submitted that it is, therefore, a fit case wherein the

sentence is fit to be suspended.

While on the other hand Mrs. Shweta Singh learned

Counsel appearing for the respondent- State of Jharkhand has

submitted that there cannot be the presumption of age to be

one year plus and minus so far as the POCSO Act is concerned,

since, the definition of child as per the definition made under

Section 2 (d) of the POCSO Act clearly clarifies that the child will

be said to be a child if below the age of 18 years.

It has been submitted that it would be evident from

the finding recorded by the learned trial court as under

paragraph 20 and 21 wherein the age of the victim has been

determined, by taking into consideration the provision of

Section 94 of the Juvenile Justice Act, 2015, the admission

certificate, the date of birth and the age of the victim girl, to be

less than the age of 18 years. The learned trial court after taking

into consideration the definition of child within the meaning of

Section 2 (d) of the POCSO Act has come to the conclusive

finding that the victim girl was child at the time of occurrence

and as such the presumption against the appellant, as

stipulated under Section 29 and 30 of the POCSO Act, is to be

derived and accordingly the said presumption has been derived

basis upon which the judgment of conviction has been passed.

Learned Counsel appearing for the State on the basis

of the aforesaid ground has submitted that by considering the

aforesaid fact it cannot be said that it is a fit case where the

sentence is to be suspended.

We have heard the learned Counsel for the parties

and going through the finding recorded by the learned trial

court as also the lower court record has found therefrom that

the issue of age, which is the main ground having been agitated

in our onion that the victim girl, since, is less of three months

from the age of 18 years is to be treated to be major so as to

come out the purview of the Section 2 (d) of the POCSO Act,

according to our considered view, the same cannot be said to be

a justified argument, reason being, that when an Act provided

definition under Section 2 (d) giving therein the definition of

child who will be treated to be child if the child is below the age

of 18 years then it is to be construed in the said way and there

cannot be any relaxation. Otherwise, if the relaxation principle

will be applied in the Act, the very purpose and the object of the

POCSO Act will be frustrated.

The Hon'ble Apex Court in the case of Jarnail Singh

vs. State of Haryana, reported in (2013) 7 SCC 263 has

considered the aforesaid aspect of the matter wherein the

process has been provided to determine the age i.e. on the basis

of Section 94 of the Juvenile Justice Act, 2015.

It appears from paragraph No. 21 of the impugned

judgment that the learned trial court by taking endeavour under

Section 94 of the the Juvenile Justice Act, 2015 has assessed

the age of the victim to be below the age of 18 years and hence

came to the conclusive finding that the victim girl is coming

under definition of "child" within the definition of Section 2 (d)

of the POCSO Act.

This Court after having discussed the aforesaid fact

and coming to the testimony of the prosecution witnesses

including the victim found that the victim girl, although, has

deposed that she on her own wish has travelled from one place

to another. But the question is that when the girl is child such

willingness is having no bearing as per the object and injury of

the POCSO Act.

It further appears from the testimony of the Doctor

wherein the victim girl has been said to be habitual intercourse

as also she was found to be having the pregnancy of 14 weeks

03 days.

This Court, on the basis of the discussion made

hereinabove and considering the testimony of the victim girl

about the commission of crime as also the testimony of Doctor,

is of the view that it is not a fit case where the sentence is to be

suspended.

Accordingly, the instant Interlocutory Application is

hereby rejected.

However, any observation made herein will not

prejudice the merit of the case, since, the Criminal Appeal is

pending.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) P.K.S.