Gangaram Behra vs The State Of Jharkhand
2023 Latest Caselaw 4042 Jhar

                                1        Criminal Appeal (DB) No.457 of 2023




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Criminal Appeal (DB) No.457 of 2023

Gangaram Behra, aged about 26 years, son of Sonu Behra, resident of
village- Lakhimposi, P.O. & P.S. - Kumardungi, District- West
Singhbhum                      .....       Appellant
                       Versus
The State of Jharkhand         ....          Respondent

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
       HON'BLE MR. JUSTICE NAVNEET KUMAR

For the Appellant          :   Mr. Randhir Kumar, Advocate
For the Respondent         :   Mr. Shailendra Kr. Tiwari, Spl. PP
                       -----

Order No.8: Dated 18 October 2023 th

I.A. No.8631 of 2023

The instant I.A. No.8631 of 2023 has been filed for suspension of

sentence, directed against the judgment of conviction dated 22.02.2023

and order of sentence dated 23.02.2023, passed in Special POCSO Case

No.19 of 2018, arising out of Kumardungi P.S. Case No.09 of 2018, by

learned Additional Sessions Judge-I cum- Special Judge (POCSO) Act,

West Singhbhum at Chaibasa, whereby and whereunder, the

appellant has been convicted for the offences under Sections 363,

366A, 376 and 506 of Indian Penal Code and Section 4 of the Protection

of Children from Sexual Offences Act and the appellant has been

sentenced to undergo R.I. for 5 years with a fine of Rs. 2,000/- for the

offences under section 363 of the Indian Penal Code and in default of

payment, further S.I. for one month.

The appellant has further been sentenced to undergo R.I. for 7

years with fine of Rs. 4000/- for the offence under section 366A of

Indian Penal Code and in default of payment, further S.I. for 2 months.

2 Criminal Appeal (DB) No.457 of 2023

The appellant has further been sentenced to undergo R.I. for 5

years with fine of Rs. 2000/- for the offence under section 506 of

Indian Penal Code and in default of payment, further S.I. for 1 month

and further he has been sentenced to undergo R.I. for 10 years with

fine of Rs. 6000/- for the offence under section 4 of Protection Children

from Sexual offences Act and in default of payment, further S.I. for 3

months.

No separate sentence has been passed for the offence under

section 376(1) of the Indian Penal Code in view of the provisions

under section 42 of the Protection of Children from Sexual offences

Act and all the sentences shall run concurrently.

2. Mr. Randhir Kumar, learned counsel for the appellant has

submitted that it is a case where there is no ingredient, either of

Sections 363, 366A, and 376(1) of IPC as also under Section 4 of

POCSO Act.

3. Such submission has been made by referring of the statement of

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

had disclosed about the love affairs with the appellant, since the day,

when she was studied in 10th class in the concerned school.

4. It has further been contended by referring to the statement

recorded under Section 164 of Cr.P.C. that there is no reference of

commission of rape, said to have been committed by the appellant,

however, at the time of recording the testimony, PW-2 in her version

has deposed about the commission of rape by the appellant.

3 Criminal Appeal (DB) No.457 of 2023

5. It has been contended in the aforesaid premise that the

statement recorded under Section 164 of Cr.P.C, since, has been

marked as Exhibit-2 by the prosecution, wherein there is no reference

of commission of rape and as such the testimony of PW-2, victim

wherein the deposition of commission of rape has been given, the

same is nothing but only by way of improvement, hence, the entire

prosecution story, so far as the commission of crime, either abduction

or commission of rape is being falsified.

6. It has further been contended that as per the prosecution, the

victim girl said to have been missing from 06.03.2008 up till to

10.03.2008, but there was no missing report and the FIR was instituted

on 11.03.2008, after five days, but delay in lodging FIR has not been

explained.

7. It is contended, therefore, that if the girl said to be traceless, then

the normal course for the family members including the mother and

father of the girl, at least report to the concerned police station about

the missing of the girl, but there is no endavour on the part of the of

the family members including the mother and father of the girl.

8. It has further been contended that obvious reason for not

instituting the missing report is the version of the victim as recorded

under Section 164 of Cr.P.C., that she was having love affairs with the

appellant.

9. Further ground has been taken that even the issue of minor

cannot be said to be substantially proved in absence of the 4 Criminal Appeal (DB) No.457 of 2023

requirement as stipulated under Section 94 of J.J. Act, since, the victim

has been considered to be minor based upon a certificate given by the

Headmaster in the letter head.

10. It has further been contended that as per the provision of Section

94 of J.J. Act, the process has been given for determination of the age,

which has been reiterated by the Hon'ble Apex Court in the case of

P. Yuvaprakash Versus State Rep. by Inspector of Police, reported in

2023 5 Supreme 160.

11. It has been submitted, based upon the said premise, by the

learned counsel for the appellant that it is fit case where the sentence is

to be suspended.

12. On the other hand, learned Special P.P. Mr. Shailender Kumar

Tiwari, appearing for the State has vehemently opposed the

suspension of sentence on the ground that even though there is no

reference of commission of rape in the statement recorded under

Section 164 of Cr.P.C., but the victim, since has deposed in the

testimony in course of her examination, wherein, she has specifically

deposed about commission of rape by the appellant, therefore, the

said version has duly been corroborated by the medical evidence,

wherein the doctor has given its opinion that the victim was having

the sign of intercourse.

13. Learned counsel appearing for the State has further submitted

in response to the submission made on behalf of the appellant that the

age cannot be said to have conclusively been proved, since, the 5 Criminal Appeal (DB) No.457 of 2023

headmaster of the concerned school has given the certificate, certifying

the age, as duly proved by the said certificate, hence the certificate as

given by the headmaster cannot be said to be conclusive. Learned

counsel for the State based on the said premise has submitted that it is

not a fit case where the sentence is to be suspended.

14. We have heard learned counsel for the parties, gone across the

impugned judgment as also the material available on Lower Court

Record including the statement recorded under Section 164 of Cr.P.C.

15. There is no dispute as would evident from the factual aspect that

the victim in course of her examination as PW-2 has deposed about the

commission of rape upon her by the appellant. it is also available on

record that the doctor has given its opinion that the victim was

subjected to sexual intercourse, but the question herein is that when

the prosecution has brought the victim for recording her statement

under Section 164 of Cr.P.C., wherein there is no reference of

commission of rape, rather, the victim has disclosed about having the

love affairs with the appellant, hence, in that premise, what will

happen to the statement recorded under Section 164 of Cr.P.C.

16. Learned counsel for the State has submitted that the version of

the victim as recorded under Section 164 of Cr.P.C. has been

corroborated in her testimony as recorded in the capacity of PW-2, but

we are not impressed with such argument, since, the corroboration

will be said to be a statement made by the victim in the statement

recorded under Section 164 of Cr.P.C., if the victim girl would have 6 Criminal Appeal (DB) No.457 of 2023

stated about the commission of rape, but we have not find a word in

the statement recorded under Section 164 of Cr.P.C. that she was

subjected to rape by the appellant.

17. Therefore, we are of the view that if there is inconsistency in the

version of the victim girl in the statement recorded under Section 164

of Cr.P.C. and the testimony recorded in course of the trial, then it

cannot be said to be corroboration, rather, it will be construed to be

improvement of the version of PW-2.

18. Further the issue of age is also one of the points, since, in her

statement recorded under Section 164 of Cr.P.C. The girl herself had

stated that she had already passed the 10th Class Examination. The

headmaster has certified that at the 11th class, she took admission in

the said school, based upon which, the date of birth has been certified

by the headmaster of the concerned school. It means that the victim

girl, since was admitted in the concerned school in the class-11, as

such she must have passed 10th class examination, but very

surprisingly, the prosecution has not taken pain to produce the

certificate of the 10th class pass examination in order to come to the

conclusive finding about the age of the victim.

19. Further it requires to refer herein the Judgment rendered by the

Hon'ble Apex Court in the case of P. Yuvaprakash Versus State Rep.

by Inspector of Police, reported in 2023 5 Supreme 160 that even the

certificate has been given by the headmaster of the concerned school

regarding the age of the victim, the same cannot be said to have 7 Criminal Appeal (DB) No.457 of 2023

conclusive value, since, the same has been considered to be not

inconsonance with the provisions made under Section 94 of the J.J.

Act, 2015.

20. As per the aforesaid provision, the requirement of the conclusive

age is as per the procedure laid down therein, wherein there is no

reference of the age is said to be conclusive on the basis of the

certificate given by the headmaster.

21. This Court, therefore, is of the view, based upon the aforesaid

discussion and on consideration of rival submission of the parties,

coupled with the perusal of the document, it is a case where the

appellant has been able to make out prima facie case for suspension of

sentence.

22. Accordingly, in consequence thereof, the appellant, named

above, is directed to be released on bail on furnishing bail bond of

Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of the

like amount each to the satisfaction of learned Additional Sessions

Judge-I cum- Special Judge (POCSO) Act, West Singhbhum at

Chaibasa, in Special POCSO Case No.19 of 2018, in connection with

Kumardungi P.S. Case No.09 of 2018.

23. Accordingly, the I.A. No.8631 of 2023 stands allowed and

disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) R.Kumar