Jharkhand High Court
Shyam Sundar Mandal vs The State Of Jharkhand on 24 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1026 of 2022
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Shyam Sundar Mandal, aged about 27 years, s/o Rajendra Mandal, R/o
Gopi Kander, PO-Gopi Kander, PS-Gopi Kander, District-Dumka
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Vikas Pandey, Advocate
For the Respondent : Mr. Abhay Kumar Tiwari, APP
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th
Order No.05/Dated: 24 February, 2025
I.A. No. 1927 of 2025
1. The instant interlocutory application has been filed under Section 430(1)
and (2) of the BNSS, 2023 for keeping the sentence in abeyance in
connection with the judgment of conviction dated 24.08.2022 and order
of sentence dated 26.08.2022 passed by the learned Special Judge
(POCSO), Dumka in connection with POCSO Case No.01 of 2020,
whereby and whereunder, the appellant has been convicted under section
376(3) of the IPC, under Section 6 of POCSO Act and under section
3(1)(w)(ii) of SC/ST (POA) Act and sentenced to undergo RI for 25 years
and a fine of Rs.25,000/- for the offence under section 376(3) of the IPC
and in default of payment of fine further directed to undergo SI for two
years, RI for two years and a fine of Rs.10,000/- for the offence under
section 3(1)(w)(ii) of SC/ST (POA) Act and in default of payment of fine
further directed to undergo SI for six months and all the sentences will run
concurrently.
2. It has been contended on behalf of the applicant that even accepting the
testimony of PW1, the victim, no case either under section 376(3) of the
IPC or section 6 of the POCSO Act is being made out against the present
applicant if the testimony of the victim will be taken into consideration as
recorded under paragraph no. 13 of the cross-examination. It has been
contended that the prosecution witnesses, i.e., PW3, PW4, PW7 and PW8
have been declared hostile. It has also been contended that the prosecution
case has also not been fully supported by the mother of the victim who has
been examined as PW5. It has also been contended that the doctor has
also not supported the prosecution story, since, no spermatozoa has been
found as would be evident from the report as referred in paragraph no. 2
(viii) of the testimony of PW11, the doctor.
3. The learned counsel, based upon the aforesaid ground, has submitted that
it is a fit case for suspension of sentence.
4. While, on the other hand, Mr. Abhay Kumar Tiwari, learned APP
appearing for the respondent-State of Jharkhand has vehemently opposed
the prayer for suspension of sentence.
5. It has been contended by the learned APP that victim (PW1) has fully
supported the prosecution version while recording her statement under
section 164 Cr.P.C as also in her testimony as PW1 during course of the
trial.
6. We have heard the learned counsel for the parties and gone across the
findings recorded by the learned trial Court in the impugned judgment as
well as the testimony available in the lower Court records, as also the
materials exhibit as available therein.
7. This Court, in order to appreciate the arguments advanced on behalf of the
parties has gone through the testimony of PW1, the victim and found
therein that prior to coming to the Court for recording her testimony, her
statement was recorded under section 164 Cr.P.C wherein she has fully
supported the prosecution version. The same stand has been taken by the
victim in her examination-in-chief and further she remained consistent in
her cross-examination. So far as the testimony of the victim, PW1, as
recorded under paragraph no.13 of her testimony as available in the cross-
examination of the victim is concerned, even accepting the said to be true,
then also since the conviction is under section 6 of the POCSO Act and,
as such, even accepting the consent of the victim to establish the physical
relationship with the applicant, the same will be meaningless in view of
the fact that the consent has got no bearing in the penal offence as attracted
under the POCSO Act.
8. At this juncture, this Court is of the considered view that the meaning of
consent so far as POCSO Act is concerned, is having no relevance. The
reason for such view is that if the consent would have any relevance, then
the question is that for what purpose the POCSO Act has been legislated
when the penal provision as under Section 376 IPC was already there
when the POCSO Act, 2012 has been notified.
9. It needs to refer herein that it is little more than a decade that the special
Act (POCSO Act) is in operation and pertinent to note that at the time of
introduction of the POCSO Act, "age of consent" for unmarried girl was
16 and it was presumed that any one below this age cannot lawfully
consent to sexual intercourse. The POCSO Act raised the "age of consent"
to 18 years and following the recommendations of Justice J.S. Verma
Committee, in the wake of a gruesome incident, which took place in NCT,
Section 375 of IPC was also amended by the Criminal Law (Amendment)
Act, 2013.
10. As a consequence of the aforesaid provisions, an act of sexual indulgence
with a girl below 18 years, would attract the rigors of the POCSO Act as
well as the offence under Section 376 of IPC, and it is being immaterial,
whether it is a consensual relationship, as the law presume that a girl below
18 years is not capable of consenting to sexual intercourse and in such a
scenario, even if a girl below 18, consent to a sexual intercourse, her
consent must be ignored and the other party Shall be guilty of committing
an offence under the POCSO Act.
11. The POCSO Act deals with number of situations in regard to sexual
offence against children. The relevant factor such as penetrated sexual
assault as well as aggravated penetrated sexual assault depends on nature
of sexual assault, therefore, the consent of minor, is immaterial.
12. The Hon'ble Apex Court in the case of Satish Kumar Jayanti Lal Dabgar
v. State of Gujarat, (2015) 7 SCC 359 has categorically held that if the
consent of minor is treated as a mitigating circumstance, it may lead to
disastrous consequences. For ready reference the relevant paragraph of the
aforesaid judgment is being quoted as under:
"16. Once we put the things in right perspective in the manner stated
above, we have to treat it as a case where the appellant has committed
rape of a minor girl which is regarded as a heinous crime. Such an act
of sexual assault has to be abhorred. If the consent of minor is treated
as a mitigating circumstance, it may lead to disastrous consequences.
This view of ours gets strengthened when we keep in mind the letter and
spirit behind the Protection of Children from Sexual Offences Act,
2012."
13. Further, in the case of X Vs. Principal Secretary, Health and Family
Welfare Department, Government of NCT of Delhi and Another" (2023)
9 SCC 433 the Hon'ble Apex Court has laid down that in the matter of
POCSO Act, consent has got no meaning. For ready reference the relevant
paragraph is being quoted as under:
"82. ----- The Protection of Children from Sexual Offences Act, 2012
("the Pocso Act") is gender neutral and criminalises sexual activity by
those below the age of eighteen. Under the Pocso Act, factual consent
in a relationship between minors is immaterial. -----"
14. The Hon'ble Supreme Court in a recent case of "X (Minor) Vs. The State
of Jharkhand and Anr". reported in 2022 SCC OnLine SC 2373 has dealt
with the issue of consent and has considered the averment in regard to
love-affair and relevant paragraph No.6 is reproduced hereinafter :-
"6. The High Court was manifestly in error in allowing the application
for bail. The reason that from the statement under Section 164 and the
averments in the FIR, it appears that "there was a love affair" between
the appellant and the second respondent and that the case was instituted
on the refusal of the second respondent to marry the appellant, is
specious. Once, prima facie, it appears from the material before the
Court that the appellant was barely thirteen years of age on the date
when the alleged offence took place, both the grounds, namely that
"there was a love affair" between the appellant and the second
respondent as well as the alleged refusal to marry, are circumstances
which will have no bearing on the grant of bail. Having regard to the
age of the prosecutrix and the nature and gravity of the crime, no case
for the grant of bail was established. The order of the High Court
granting bail has to be interfered with since the circumstances which
prevailed with the High Court are extraneous in view of the age of the
prosecutrix, having regard to the provisions of Section 376 of IPC and
Section 6 of POCSO."
15. On the basis of discussion made hereinabove, this Court is of the view that
since we are dealing with the case of minor, as such consent has got no
meaning in the instant case.
16. The question which has been raised regarding the prosecution witnesses
have become hostile which has got no relevance in the present case in view
of the fact that the victim, as PW1, has fully supported the prosecution
version in her statement recorded under section 164 Cr.P.C and also in her
testimony while examining in her examination-in-chief and remained
consistent during her cross-examination.
17. Further, this Court, after going through the testimony of the doctor who
has been examined as PW11, has found that the doctor has also found
injury in the private part of the appellant as would be evident from the
medical report as referred in her testimony as recorded under paragraph
nos.2(iii) and (iv) of her examination-in-chief which reads as under:
" (iii) On external and internal examination-no injury is found over
body, fresh injury is found over posterior vaginal wall CLW 1" x 1/2"
x 1/2" over posterior vaginal wall.
(iv) Bleeding (B P/V+) present and Hymen was ruptured. It was painful
per veginum to admit even tip of finger in vagina."
18. This Court, after having discussed the factual and legal issues and as per
the discussion made hereinabove, is of the view that the present
interlocutory application is not fit to be allowed and, as such, we are not
inclined to enlarge the present applicant on bail by suspending his
sentence.
19. Accordingly, I.A. No. 1927 of 2025 stands dismissed.
20. 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.
21. In view thereof, I.A. No. 1927 of 2025 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Sudhir
