Jharkhand High Court
Sanjay Rajak vs The State Of Jharkhand on 6 November, 2023
1 Cr. Appeal(DB) No.489/2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.489 of 2023
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Sanjay Rajak, aged about 23 years, son of Sitaram Rajak, resident
of village-Mordiha, P.O. and P.S.-Thakurgangti, District-Godda,
Jharkhand .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mrs. Chandana Kumari, Advocate
For the State : Mrs. Snehalika Bhagat, A.P.P.
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17/Dated: 06.11.2023
Per Sujit Narayan Prasad, J:
I.A. No.3253 of 2023
1. The instant interlocutory application has been filed under Section
389(1) of the Cr.P.C. for suspension of sentence dated 31.01.2023
passed in Special POCSO Case No.10 of 2021 by the learned Special
Judge (POCSO) Godda, in connection with Thakurgangti P.S. Case
No.74 of 2020, corresponding to G.R. Case No.284 of 2021, whereby
and whereunder, the appellant has been convicted under Section 376
(DA) of the IPC and Section 6 of the POCSO Act and sentenced to
undergo imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life along with fine of
Rs.1,00,000/- and in default of payment of fine, he has to further
undergo rigorous imprisonment for two years for the offence under
Section 6 of POCSO Act.
2. The prosecution story as per F.I.R. in brief is that on
23.12.2020, the daughter of the informant-Santlal Pandit was alone
in her house. At 4 p.m. when the informant returned to his house, his
daughter was not present at house, thereafter they searched out the
Victim. On 24.12.2020, the informant found his daughter behind the
house of Doman Sah, in which, no one was living. After being asked,
she said that the accused Chhotu Pandit and Sanjay Rajak
(appellant herein) had sexually assaulted her on allurement.
3. Accordingly, F.I.R being Thakurgangti P.S. Case No.74 of 2020
has been lodged for the offences under section 376D of the IPC and
under sections 4/6 of the POCSO Act.
4. Learned Counsel appearing for the appellant has submitted that
it is a case where the prosecution has miserably failed to prove the
charge beyond all reasonable doubts. Such argument has been
made on the following grounds:
(i) There are contradictions in the evidences of the victim in her
statement under section 164 Cr.P.C and deposition before the learned
court which is evident from the statement of victim under Section 164
Cr.P.C, wherein, she has stated that the accused persons including
the appellant have allured her and taken to adjacent house, whereas,
in deposition before the court, she stated that her mouth was pressed
and taken to the said place of occurrence.
(ii) As per the medical examination, no injury was found on the
private part of victim.
(iii) There is no legal evidence to prove that there was any sexual
penetration which is the most important ingredient to prove a case
under Section 6 of the POCSO Act and in absence of the same, the
judgment of conviction and order of sentence is illegal.
(iv) The prosecution has failed to follow the procedure prescribed
under Rule 12 of the Juvenile Justice Care and Protection of
Children) Rules, 2000, which is mandatory in nature and as such, the
victim cannot be said to be minor.
(v) Learned trial court has committed illegality in giving finding with
regard to the age of the victim, save and except, the finding of the
doctor, which is never perfect evidence to find out the original age of
the victim.
5. Learned counsel for the appellant, on the aforesaid premise,
has submitted that it is a fit case where the sentence is required to be
suspended.
6. While, on the other hand, the learned APP appearing for the
State has vehemently opposed the prayer for suspension of sentence
on the following grounds:
(i) The contention of the learned counsel for the appellant that victim
was not minor at the time of occurrence is totally misconceived
because P.W. 2 Dr. Usha Singh has medically examined the victim
and submitted her age about 16 Years. Further, P.W. 3, Dr. Deepak
Kumar, Radiologist has also medically examined the victim and
determined her age as 16 years. Therefore, it can be stated that at
the time of occurrence, victim was minor.
(ii) It is admitted fact that no sign of sexual intercourse was found in
the medical examination of the victim but from the record, it appears
that the medical examination of victim was conducted after delay of 4
days and that is the probable reason for the lack of medical evidence
for sexual assault.
(iii) It is settled connotation of law that in cases of sexual assault,
the statement of prosecutrix may alone form the basis of conviction.
(iv) Social feedback of the neighbors and common villagers
regarding the release of the accused appellant is negative as per the
Report of concern Police Station which is appended as Annexure-1 to
the objection affidavit as filed by the state.
(v) Further, Sections 29 and 30 of the POCSO Act raised a
statutory presumption against the accused/appellant regarding his
culpable mental state or regarding commission of offence by him
unless contrary is proved.
7. Learned A.P.P, based upon the aforesaid argument, has
submitted that it is not a case where sentence is required to be
suspended.
8. This Court has heard learned counsel for the parties, perused
the finding recorded by learned trial Court in the impugned order as
also the testimonies of the witnesses including the documents
available in Lower Court Records.
9. This Court, before appreciating the argument advanced on
behalf of parties and in order to examine as to whether in the given
facts of the case it is a fit case where sentence is to be suspended,
deems it fit and proper to refer the settled position of law regarding
consideration to be made at the time of suspension of sentence, as
has been settled by Hon'ble Apex Court in Preet Pal Singh vs. State
of U.P., reported in (2020) 8 SCC 645 has held at paragraphs 32 and
35 as under:
"32. In Mauji Ram v. State of U.P. [ (2019) 8 SCC
17] , this Court referred to Ajay Kumar Sharma v.
State of U.P. [ (2005) 7 SCC], Lokesh Singh v. State
of U.P. [ (2008) 16 SCC 753] and Dataram Singh v.
State of U.P. [ (2018) 3 SCC 22] and stated
categorically that this Court had time and again
emphasised the need for assigning reasons while
granting bail.
35. There is a difference between grant of bail under
Section 439 CrPC in case of pre-trial arrest and
suspension of sentence under Section 389 CrPC
and grant of bail, post-conviction. In the earlier case,
there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and
the courts may be liberal, depending on the facts
and circumstances of the case, on the principle that
bail is the rule and jail is an exception, as held by
this Court in Dataram Singh v. State of U.P.
[Dataram Singh v. State of U.P., (2018) 3 SCC 22 :
(2018) 1 SCC (Cri) 675] However, in case of post-
conviction bail, by suspension of operation of
the sentence, there is a finding of guilt and the
question of presumption of innocence does not
arise. Nor is the principle of bail being the rule
and jail an exception attracted, once there is
conviction upon trial. Rather, the court
considering an application for suspension of
sentence and grant of bail, is to consider the
prima facie merits of the appeal, coupled with
other factors. There should be strong
compelling reasons for grant of bail,
notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the order
granting bail, as mandated in Section 389(1)
CrPC."
10. It is evident from the aforesaid judgment, that during considering
suspension of sentence under section 389 of Cr.P.C which is the
post-conviction stage, the presumption of innocence in favour the
accused cannot be available and at this stage, the Court's only duty is
to see that the prima-facie case is made out or not.
11. Recently, the Hon'ble Apex Court in the case of Omprakash
Sahni v. Jai Shankar Chaudhary & Anr., (2023) 6 SCC 123 has
been pleased to hold that the appellate court should not reappreciate
the evidence at the stage of Section 389 CrPC and try to pick up a
few lacunae or loopholes here or there in the case of the prosecution.
Such would not be a correct approach.
12. We are now proceeding to examine material available on record
and the rival submissions advanced on behalf of parties.
13. From perusal of the record, it is evident from the testimony of
P.W. 2, Dr. Usha Singh who has medically examined the victim and
submitted the age of victim about 16 Years. Further P.W.3, Dr.
Deepak Kumar, Radiologist who was the member of the Medical
Board which was constituted for the determination of the age of the
victim, has also medically examined the victim and determined her
age as 16 years. Further P.W.4, Dr. Kumari Sushma who was also
the member of the Medical Board has found the age of victim near
about 16 years on the basis of dental examination of the victim.
14. Thus, it is evident from the deposition of P.W.2, 3 and 4 that at
the time of occurrence, the age of victim was 16 years and as per the
stipulation made under Section 2(d) of the Juvenile Justice Act she
was child at the time of the said occurrence and as such, the consent
of such minor is immaterial for sexual act.
15. It is apparent from the testimony of victim/prosecutrix (P.W.1)
that she has fully substantiated the case of the prosecution. In her
examination-in-chief, she has stated that accused persons including
the appellant had pressed her mouth and taken away her in the
Khandahar (carcase) and committed rape upon her. The testimony of
P.W.1 has been fully substantiated by the testimony of the P.W.7
mother of deceased and P.W.8, the informant and father of the victim.
16. P.W. 8 has categorically stated in his testimony that his
daughter has stated to him about the offence of rape committed with
her by the accused persons. He has further deposed that he found
the victim near the Khandahar (carcase) house of Doman Shah.
17. Further, P.W.7 has testified in her testimony that victim has told
her that the accused including the appellant committed rape with her
in Khandahar, (carcase) house of Doman Shah and the victim was
found at the said place of occurrence.
18. Thus, the deposition of the victim before the Court has been
fortified by the testimonies of the P.W.7 and P.W.8.
19. The foremost argument which has been advanced on behalf of
appellant is that as per the medical report, victim was not subjected to
the sexual assault, therefore, appellant cannot be held liable for the
said offences.
20. In this context, it is pertinent to mention here that in such type of
heinous crime, conviction can be based upon the sole testimony of
the prosecutrix. Corroboration is not a sine qua non for a conviction in
rape case. However, it depends upon that how much confidence is to
be transpired from the testimony of the prosecutrix.
21. This Court, on the basis of the said position of law and coming
back to the material available on record has found that the victim
(P.W.1), who has subjected to sexual assault by the appellant, has
supported the prosecution version and the testimony of the victim has
been fully corroborated by P.W.7 and 8.
22. From the record, it appears that the medical examination of
victim was conducted after delay of 4 days and it cannot be ruled out
that it is the probable reason that there is no medical evidence of
sexual assault.
23. Further, under Section 29 of POCSO Act, a mandatory
presumption qua certain offences is to be drawn against the accused
in a prosecution for offences under this Act, unless the contrary is
proved. Similarly, Section 30 of POCSO Act mandates that the
Special Court shall draw a presumption of the existence of culpable
mental state of the accused where culpable mental state is required
on the part of accused, it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.
24. This Court, considering the aforesaid facts and after taking into
consideration the settled proposition of law as also the mandate of
the provision of the POCSO Act, prima-facie is of the view that it is
not a fit case where sentence is required to be suspended.
25. Accordingly, interlocutory application being I.A. No.3253 of 2023
stands dismissed.
26. It is made clear that any observation made herein will not
prejudice the issue on merit as the appeal is lying pending for its
consideration.
27. Let a copy of this order be forwarded to the appellant through
Jail Superintendent.
(Sujit Narayan Prasad, J.)
Rohit/- (Navneet Kumar, J.)
