Jharkhand High Court
Prakash Rajwar vs The State Of Jharkhand on 7 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 09 of 2025
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Prakash Rajwar, aged about 23 years, son of Late Bahadur Rajwar,
resident of Vill- Polethdidh, P.O. Kharni, P.S. Barwadda, District
Dhanbad. ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Ranesh Anand, Advocate
For the Respondent : Mr. Shiv Shankar Kumar, Advocate
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th
05/Dated: 7 February, 2025
I.A. No. 11918 of 2024:
1. The instant interlocutory application has been filed under Section 430(1)
of the BNSS, 2023 for keeping the sentence in abeyance in connection
with the judgment of conviction dated 05.08.2024 and order of sentence
dated 06.08.2024 passed by the learned Special Judge-POCSO Act,
Dhanbad, in connection with Spl. (POCSO) Case No.44 of 2022 arising
out of Govindpur P.S. Case No. 95 of 2022, whereby and whereunder,
the appellant has been convicted under Section 376(2)(n) of the Indian
Penal Code for rigorous imprisonment for 20 years along with a fine of
Rs. 10,000/- under Section 6 of POCSO Act and, the Court has further
ordered that in default of payment of fine, the appellant shall further
undergo additional imprisonment for one month.
2. It has been contended by the learned counsel appearing for the appellant
that if the testimony of the victim will be taken into consideration in
entirety, it will be said to be the consensual relation as such there is the
absence of ingredient of Section 376.
3. It has been submitted that so far as the order of conviction has passed
under Section 6 of the POCSO Act is concerned, it will also not be
applicable reason being that the age of the victim has not to be assessed
in terms of the provision of Section 94 of the J.J. Act.
4. Learned counsel appearing for the appellant has further submitted that
the certificate said to be issued by the Head Master of the concerned
school, where the victim had been studied, had been produced but the
same had not been identified by the Head Master rather being identified
by the Investigating Officer due to which the said document cannot be
said to be the conclusive proof of the age and as such, in absence of the
conclusive proof of the age, even the ingredient of POCSO Act is not
available.
5. The learned counsel appearing for the appellant, based upon the
aforesaid ground, has therefore submitted that it is a fit case for
suspension of sentence while the appeal is pending.
6. While, on the other hand, learned Public Prosecutor appearing for the
respondent State has vehemently opposed the prayer for suspension of
sentence.
7. It has been contended that the victim has fully supported the prosecution
version and she being a minor since has been subjected to sexual assault
and as such the judgment of conviction passed by the learned trial Court
cannot be said to be suffer from an error.
8. We have heard the learned counsel for the parties and gone across the
finding recorded by the learned trial court in the impugned judgment as
also the testimony available in the Trial Court Records and the other
exhibits available as therein.
9. This Court, in order to appreciate the arguments advanced by the learned
counsel appearing on behalf of the parties, has gone through the
testimony of the victim and found therefrom that she herself had
admitted the fact that she, on pretext of false promise of the marriage,
was subjected to sexual assault or rape.
10. The question of the consensual relationship is the main argument
advanced by the learned counsel appearing for the appellant.
11. This Court is conscious of the fact that in case a minor, the consent has
got no meaning, but for that the conclusive proof of the age is to be
based upon the principle as laid down under Section 94 of JJ Act, 2015 is
required.
12. It is evident from the testimony of the Investigating Officer that the age
of the appellant which has been assessed to be more than 17 years which
is based upon the certificate issued by the Head Master of the concerned
school, which has been marked as Exhibit P-4.
13. The said document has been exhibited by the Investigating Officer. The
Investigating Officer in his testimony has deposed that he has never
visited the concerned school and even not gone through the admission
register. The law as has been laid down under Section 94 of the JJ Act
is that the certificate is being produced by the concerned Head Master,
the same is proved by the author of said document.
14. This Court, is of the view that the document having not been proved by
the author of the said document. i.e., the Head Master rather it is certified
by the Investigating Officer hence, the said document cannot be said to
be the conclusive proof of age.
15. This Court, in view of the aforesaid consideration and after coming to
the testimony of victim, who has been examined as PW-1, has found that
she appears to be the consented party and as such is of the view that the
appellant has been able to make out a case for suspension of sentence
while the appeal is pending.
16. Accordingly, I.A. No. 11918 of 2024 stands allowed.
17. In consequence thereof, the appellant, named above, is directed to be
released on bail, during pendency of the 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 the learned Special Judge-POCSO
Act, Dhanbad, in connection with Spl. (POCSO) Case No.44 of 2022
arising out of Govindpur P.S. Case No. 95 of 2022
18. It is made clear that any observation made hereinabove will not prejudice
the case on merit, since, the criminal appeal is lying pending before this
Court for its consideration.
19. In view thereof, I.A. No. 11918 of 2024 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Samarth
