Jharkhand High Court
Rajan Chik Baraik vs The State Of Jharkhand on 4 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1358 of 2024
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Rajan Chik Baraik, aged about 25 years, Son of Indar Chik Baraik,
resident of Village-Chamdu, P.O. & P.S.- Senha, District-Lohardaga,
Jharkhand ... ... 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. Amartya Choubey, Advocate
: Mr. Ashish Choudhary, Advocate
: Mr. Arpan Ekka, Advocate
For the Respondent : Mr. Abhay Kr. Tiwari, APP
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th
03/Dated: 4 March, 2025
I.A. No. 2218 of 2025:
1. The instant interlocutory application has been filed for keeping the
sentence in abeyance in connection with the judgment of conviction
dated 17.08.2024 and order of sentence dated 19.08.2024 passed by the
learned Additional Sessions Judge-I-Special Judge, Lohardaga in
connection with Special POCSO Case No. 06 of 2020 arising out of
Senha P.S. Case No. 03/2020, whereby and whereunder, the appellant
has been convicted under Section 4 of the POCSO Act and sentenced to
undergo Rigorous Imprisonment for 20 years and a fine of Rs. 20,000/-
and in default of payment of fine, he has to further undergo for 3
months' imprisonment; under Section 363 of IPC sentenced to undergo
Rigorous Imprisonment for 4 years with a fine of Rs. 5,000/- and in
default of payment of fine he has to further undergo the imprisonment of
15 days; under Section 366 of IPC sentenced him to undergo Rigorous
Imprisonment for 6 years with a fine of Rs. 10,000/- and in default of
payment of fine, he has to further undergo imprisonment for 1 month.
2. It has been contended by the learned counsel appearing for the appellant
that it is a case where no case either under Section 376 of IPC or Section
4 of the POCSO Act is made out, since, there is no conclusive evidence
of assessment of age of the victim-girl.
3. The age has been assessed by the Medical Board wherein the age has
been assessed to be in between 17 to 18 years.
4. The learned counsel has further submitted that since the ingredient of
POCSO Act is not there and in view of the testimony of the mother and
father of the victim where it has been deposed by them that since the
appellant refused to marry with the victim, therefore, the present case has
been instituted and in that view of the matter, it cannot be said that the
ingredient of Section 376 is available.
5. Learned counsel, based upon the aforesaid ground, has submitted that it
is therefore a fit case where the sentence is to be suspended while the
appeal is lying pending.
6. While, on the other hand, Mr. Abhay Kr. Tiwari, learned Additional
Public Prosecutor appearing for the State has vehemently opposed the
prayer for suspension of sentence.
7. It has been contended that the Medical Board since has been constituted
and there is no rebuttal with respect to the assessment of the age having
been raised at the time of trial and such it is not available for the
appellant to raise the issue by a questioning the assessment regarding the
age. The victim since has been assessed to the age of 17 years which is
below the age of 18 years and hence the ingredient of Section 4 of the
POCSO Act is available wherein there is no meaning of any consent of
the child.
8. Learned counsel appearing for the State, based upon the aforesaid
ground, has submitted that it is therefore not a fit case where the
sentence is to be suspended.
9. 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 of the witnesses available in the Lower Court Records
and the other relevant documents exhibited therein.
10. This Court has examined rival submissions advanced by the learned
counsel appearing for the parties and the admitted fact as would be
evident from the material available in Trial Court Record that the basis
of the assessment of the age of the victim is the report of the Medical
Board and the said report has been exhibited as P-9.
11. There is no assessment of age by taking recourse of the provision of
Section 94(1) or Section 94(2) and straightway the prosecution has
departed therefrom and taken recourse of Section 94(3) of the JJ Act,
2015.
12. The definition of age is having bearing with the culpability said to be
committed attracting the ingredient either of Section 4 or Section 6 of the
POCSO Act and as such the same is to be determined on the basis of law
as provided under Section 94(1) and 94(2) and if the documents are not
available either under Section 94(1) and 94(2), then only the switchover
is to be there while seeking recourse of 94(3) the same has been taken
into consideration by the Hon'ble Apex Court in the judgment rendered
in the case of P. Yuvaprakash vs. State Rep. by Inspector of Police, 2023
SCC OnLine SC 846 wherein it has elaborately ben dealt with at
paragraph-14 thereof which reads as under:
"14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of
birth certificate from the school or matriculation or equivalent
certificate by the concerned examination board has to be firstly
preferred in the absence of which the birth certificate issued by the
Corporation or Municipal Authority or Panchayat and it is only
thereafter in the absence of these such documents the age is to be
determined through "an ossification test" or "any other latest medical
age determination test" conducted on the orders of the concerned
authority, i.e. Committee or Board or Court. In the present case,
concededly, only a transfer certificate and not the date of birth
certificate or matriculation or equivalent certificate was considered.
Ex. C1, i.e., the school transfer certificate showed the date of birth of the
victim as 11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the court summoned
witness, i.e., CW-1. The burden is always upon the prosecution to
establish what it alleges; therefore, the prosecution could not have
been fallen back upon a document 5 which it had never relied upon.
Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar)
had stated on oath that the records for the year 1997 in respect to the
births and deaths were missing. Since it did not answer to the
description of any class of documents mentioned in Section 94(2)(i) as
it was a mere transfer certificate, Ex C-1 could not have been relied
upon to hold that M was below 18 years at the time of commission of
the offence."
13. The Medical Board has assessed the age of the victim between the age
17 to 18 years.
14. It has come in the evidence of the victim that at the time she was
studying in intermediate and as such she after having passed the
matriculation examination will be said to be the student of intermediate,
but the Investigating Agency has not come forth with any certificate said
to be issued by the Board so as to assess the age in the light of provision
of Section 94(1) of the JJ Act, 2015.
15. This Court, therefore, is of the view that on the basis of non-conclusive
assessment of the age, prima facie, the victim cannot be said with all
conclusive finding that she was a child at the time of alleged offence.
16. So far as the ingredient of Section 376 is concerned, it has been found
from the testimony of the father and the mother of the victim and the
victim herself that on the false pretext of the marriage, the physical
relationship has been established.
17. It appears therefore that the physical relationship is with the consent of
the victim having known even to the mother and the father of the girl.
18. Therefore, in such circumstances, this Court is of the view that the
ingredient of Section 376 is not made out herein.
19. Accordingly, this Court is of the view that the applicant has been able to
make out a case for suspension of sentence during the pendency of the
instant appeal.
20. Accordingly, I.A. No. 2218 of 2025 stands allowed.
21. 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 Additional Sessions
Judge-I-Special Judge, Lohardaga in connection with Special POCSO
Case No. 06 of 2020 arising out of Senha P.S. Case No. 03/2020
22. 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.
23. In view thereof, I.A. No. 2218 of 2025 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Samarth
