Jharkhand High Court
Bablu Purti Aged About 22Years S/O ... vs The State Of Jharkhand on 19 November, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 680 of 2024
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Bablu Purti aged about 22years S/o Chamera Pahan R/o Village- Chalam
Bartoli, P.O- Burju, P.S. - Khunti, Dist- Khunti, 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. Amit Kumar, Advocate
For the State : Mrs. Shweta Singh, APP
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th
Order No. 07 / Dated: 19 November, 2024
I.A. No. 10323 of 2024
1. The instant Appeal has been listed for passing appropriate order
on the instant Interlocutory Application filed on behalf of appellant
under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023
for suspension of sentence/grant of bail during the pendency of the
instant Cr. Appeal (DB) No. 680 of 2024 in connection with POCSO
Case No.05/2022, arising out of Tapkara P.S. Case No.24 of 2021,
against the judgment of conviction dated 01.05.2024 and order of
sentence dated 06.05.2024 passed by learned Special Judge, POCSO
Act, Khunti whereby and whereunder the appellant has been convicted
under Section 376(2)(n) of IPC and under Section 6 of POCSO Act and
sentenced to undergo R.I. of twenty years and fine of Rs.50,000/- for the
offence under Section 6 of POCSO Act. In default of payment of fine, he
has been further directed to undergo simple imprisonment for six-
months. No separate sentence has been passed under Section 376(2)(n)
of IPC. The period undergone during trial directed to be set off from the
period of sentence.
2. It has been contended on behalf of the appellant that it is a case
where the prosecution has miserably failed to establish the charge either
under Section 376(2)(n) of IPC or under Section 6 of POCSO Act. Such
submission has been made on the basis of the testimony of the victim
who was examined as PW-2 where she has disclosed that she was
subjected to rape on first time when she on the basis of having talking
term with the appellant had gone to his place and carried her to
unconstructed house in the forest where she was subjected to rape and
she was asked to remain there for whole night and during aforesaid time
also she was subjected to rape for four to five times, thereafter, also she
was subjected to forceful physical relationship but she due to fear has
not reported the same to the police, rather, the F.I.R. was instituted after
eight months.
3. It has been contended that the said version of the victim appears to
be highly improbable in order to make out a case of forceful physical
relationship. The ground has been taken that the appellant has been
convicted under Section 6 of POCSO Act but the prosecution has failed
to establish the charge where age has not conclusively been proved in
pursuant to the provision of law as contained under Section 94 of the J.J.
Act. Learned counsel has further submitted that since the age of the
appellant has not conclusively been proved and as such conviction under
Section 6 of POCSO Act is not sustainable. Further, since the age of the
victim has not conclusively been proved and in view of the version of the
victim, PW-2 even the case under Section 376(2)(n) of IPC is not made
out.
4. Learned counsel for the appellant based upon the aforesaid ground
has submitted that it is a fit case where the sentence is to be suspended.
5. While on the other hand, learned Additional Public Prosecutor
appearing for the respondent-State has vehemently opposed the prayer
for suspension of sentence by referring the testimony of the victim as
also the testimony of other witnesses and has submitted that it is
incorrect on the part of the appellant to take the ground that appellant has
wrongly been convicted in the present case, as such, it is not a fit case for
suspension of sentence.
6. We have heard the learned counsel for the parties, gone through
the findings recorded by the learned trial Court in the impugned
judgment as also the testimonies of all the witnesses and other exhibits
as available in the Lower Court Record which has been called for by this
Court vide order dated 14.08.2024.
7. This Court in order to appreciate the argument advanced on behalf
of the parties has gone through the records in entirety. It is proper to first
consider the issue of finding with respect to the age of the victim. It is
evident from the record that age of the victim has been assessed to be 17
years, the basis of such determination is, the certificate produced by the
school but the author of the said certificate has not been produced to
2 Cr. Appeal (D.B.) No. 680 of 2024
corroborate his handwriting and thereby the genuineness of the said
document cannot be said to be established. The age of the victim since is
17 years and in absence of the conclusive proof of the age in pursuance
of non-observation of the provision of Section 94 of J.J. Act, the findings
recorded so far as conviction under Section 6 of POCSO Act, prima facie
appears to doubtful.
8. So far as conviction under Section 376(2)(n) of IPC is concerned,
we have considered the testimony of the victim who has been examined
as PW-2 who has deposed about the forceful physical relationship by the
appellant. The F.I.R. has been instituted after lapse of eight months and
in course thereof she had alleged against the appellant of establishing
physical relationship time and again. The same appears to be improbable
and as such this Court on the basis of the discussion made hereinabove is
of the view that appellant has been able to make out a prima facie case.
9. This Court is therefore of the view that it is a fit case where the
sentence is to be suspended.
10. Accordingly, the Interlocutory Application stands allowed.
11. In consequence thereof, the appellant, named above, is directed to
be released on bail during pendency of this appeal, 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 Special Judge,
POCSO Act, Khunti in connection with POCSO Case No.05/2022,
arising out of Tapkara P.S. Case No.24 of 2021.
12. Accordingly, the instant interlocutory application being IA No.
10323 of 2024 stands disposed of.
13. It is made clear that any observation made hereinabove will not
prejudice the case on merit, since, the criminal appeal is pending before
this Court for its consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Basant/S.Das
3 Cr. Appeal (D.B.) No. 680 of 2024
