Jharkhand High Court
Lal Mahto vs The State Of Jharkhand on 18 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 594 of 2023
With
I.A. No. 3778 of 2023
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Lal Mahto, aged about 35 years, son of Prafull Mahato, resident of
Village Reding, P.O. and P.S. Kharsawan, District Seraikella-Kharsawan,
Jharkhand.
....... Appellant
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Durga C. Mishra, Advocate
For the Respondent : Mrs. Snehlika Bhagat, Advocate
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th
04/Dated: 18 August, 2023
I.A. No. 3778 of 2023:
1. The instant application has been filed under Section 389(1) of Cr.P.C.
for suspension of sentence in connection with judgment of conviction
dated 29.06.2022 and sentence dated 08.07.2022 passed by the learned
Special Judge (POCSO), Seraikella in POCSO Case no. 32 of 2019
arising out of Kharsawan P.S. Case no. 17 of 2019, whereby and
whereunder, the appellant has been convicted for the offence under
Section 4 and 6 of POCSO Act and under Section 376(3) of IPC and
sentenced to undergo imprisonment for life under Section 6 of the
POCSO Act along with fine of Rs.5,000/- and in default of payment of
fine, has been directed to further undergo simple imprisonment for two
years.
2. Mr. Durga C. Mishra, learned counsel for the appellant has submitted
that the prosecution has miserably failed to prove the charge beyond all
shadow of doubt either under Section 376(3) of IPC or under Section 4
and 6 of the POCSO Act. Such submission has been made on the ground
that the age of the victim has not conclusively been proved since the
doctor who has examined the victim has herself deposed in the cross-
examination that she is not a Radiologist.
3. It has been contended that as per the statutory command, i.e., under
Section 94 of the Juvenile Justice Act, 2015, the procedure is laid down
for determination of the age of a victim so as to have a concrete view
regarding a victim said to be a child within the meaning of Section 2 of
the POCSO Act, 2012 but herein, the doctor who has examined the
victim has herself admitted that she is not a Radiologist, therefore, in
absence of any Radiologist, there cannot be a conclusive proof of the age
as the fact of the case herein is.
4. It has further been contended that the doctor has given specific opinion
that there is no sign of sexual intercourse, therefore, the testimony of the
victim child is not in corroboration with the medical evidence and hence,
there is non-availability of ingredient of Section 376 of IPC or Section 4
and 6 of the POCSO Act.
5. It has further been submitted that no independent witness has been
examined and one Shambhu Mahto from whose shop the victim was
returning has not been examined, therefore, serious prejudice has been
caused to the appellant and in that view of the matter, it is a fit case
where the sentence may be suspended.
6. While on the other hand, Mrs. Snehlika Bhagat, learned Additional
Public Prosecutor appearing for the respondent-State of Jharkhand has
vehemently opposed the aforesaid submission for the purpose of
suspension of sentence as has been argued on behalf of the appellant.
7. It has been contended that it is incorrect on the part of the appellant to
take the ground that there is no radiological report rather it would be
evident from the testimony of P.W.- 6, the doctor, who has examined the
victim has seen the X-Ray report basis upon which the age has been
assessed to be about 13 years. It has been submitted that the aforesaid X-
Ray report was for the purpose of age determination which has also
come in the testimony of P.W.- 6.
8. It has further been contended that it is also incorrect on the part of the
appellant to take the ground that there is no sexual assault rather it would
be evident from the testimony of the doctor wherein specific opinion has
been given about genital injury and physical injury present.
9. The learned APP has submitted that even accepting the argument
advanced on behalf of the appellant to be correct as per the testimony of
the doctor, P.W.- 6, but the doctor has found genital injury and physical
injury, therefore, the ingredient of Section 4 and 6 of POCSO Act is well
attracted since the injury will come under the fold of definition of sexual
assault as per the object and spirit of the POCSO Act.
10. Submission has also been made in response to the submission made on
behalf of the appellant that Shambhu Mahto was not examined who
happens to be material witness as per the learned counsel for the
appellant, but, it has been submitted that Shambhu Mahto cannot be a
material witness since when the victim returned from his shop then she
was subjected to sexual assault, hence, occurrence since took place after
leaving the said shop as per the prosecution version, therefore, it cannot
be said that due to non-examination of the said Shambhu Mahto, the
prosecution has failed to prove the charge.
11. On the basis of the aforesaid premise, learned counsel for the State has
submitted that it is not a fit case where the sentence may be suspended.
12. We have heard the learned counsel for the parties, gone across the
finding recorded by the learned trial court in the impugned order as also
the testimony of the witnesses as available in the LCR which has been
called for by this Court vide order dated 06.07.2023.
13. It is evident from the testimony of the victim who has been examined as
P.W.-1, has stated that she was aged about 15 years at the time when she
was examined and the said occurrence took place near a Temple. The
P.W.-1, the victim, has fully supported the prosecution version about the
commission of crime of rape and the victim has also substantiated the
statement so recorded as under Section 164 of Cr.P.C. which has been
marked as Ext. 1.
14. It further appears from the testimony of the doctor that although she has
not found sign suggesting sexual intercourse but evidence of physical
and genital injury has been found.
15. The argument has been advanced regarding the age of the victim since
according to the learned counsel for the appellant, there was no
conclusive proof of determination of age and the doctor who has
examined the victim had disclosed that she is not a Radiologist.
16. But, we, after going through the testimony of P.W.- 6 and the document
available has found that the victim for the purpose of age determination
was examined by the Radiologist where she was radiologically examined
by conducting Ossification Test (X-Ray). It has been found on the basis
of the aforesaid report that the victim was estimated to be of the age of
13 years.
17. This Court, therefore, is of the view that compliance of Section 94 of the
Juvenile Justice Act, 2015 is there since the aforesaid provision provides
that in absence of any documentary evidence, i.e., matriculation
certificate issued by the school or institution, the Ossification Test is
required to be conducted for determination of the age. Herein, X-Ray
report is there. Therefore, the age of the victim basis upon the X-Ray
report has been assessed to be of 13 years, hence, there is no reason to
doubt the same at this stage.
18. So far as the examination of Shambhu Mahto is concerned, we are not
impressed with such submission since the prosecutrix has fully supported
the prosecution version having been corroborated by the medical
evidence.
19. In that view of the matter, we are not satisfied to keep the sentence in
abeyance.
20. Accordingly, the instant interlocutory application stands dismissed.
21. However, any observation made herein will not prejudice the case of the
parties since the criminal appeal is lying pending before this Court for its
consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
