Binodi Rajvanshi @ Binod Rajvanshi vs State Of Bihar

Heard Mr. Rama Kant Sharma, learned senior counsel assisted by Mr. Bipin Kumar, learned counsel for the appellants and Mr. Sujit Kumar Singh, learned A.P.P for the Respondent-State.

This appeal has been filed on behalf of the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”) against the judgment of conviction dated 23.06.2023 and order of sentence dated 30.06.2023 rendered by the learned Additional Sessions Judge VI-cum-Special Judge, POCSO, Nawada in POCSO Case No. 22 of 2020, C.I.S. No. 37 of 2020, arising out of Rajauli P.S. Case No. 206 of 2020 whereby, the appellants have been convicted for the offences punishable under Section 376(D) of the Indian Penal Code and Section 5(g) read with Section 6 of the POCSO Act and sentenced to undergo RI for twenty years each and fine of Rs. 25,000/- each for the offence punishable under Section 5(g) read with Section 6 of the POCSO Act and in default of payment of fine, they shall have to further undergo RI for six months.

The appeal has been admitted and at present, learned counsel appearing for the appellants has prayed for bail and for suspension of sentence imposed by the learned trial court during pendency of the instant appeal.

Learned senior counsel for the appellants has referred to the copy of deposition of the prosecution witnesses, copy of which is separately provided, and thereafter submitted that there are major contradictions and improvements in the story put forward by the victim herself. It is submitted in the Ferdbeyan that the victim girl stated that when she shouted, her mother came at the place of occurrence. However, while giving her statement under Section 164 of the Code before the concerned Magistrate, she has stated that when she had shouted, some of the villagers came at the place of occurrence. However, it is pointed out by the learned counsel for the appellants that the mother of the victim has specifically stated in her deposition given before the Court that her daughter came to the house alone and thereafter she has narrated about the occurrence in question. It is further submitted that the story put forward by the victim is required to be discarded, more particularly, looking to the medical evidence. It is further submitted that even prosecution has failed to prove with regard to the age of the victim by producing any birth certificate or school record. It is also pointed out from the record i.e. from the deposition given by the doctor, who stated that from the radiological report, the age of the victim can be stated to be 17 years. At this stage, learned senior counsel also referred to the findings recorded by the Trial Court in the impugned judgment. It is contended that the Trial Court has specifically observed that the age of the victim was 16 and ½ years to 17 and ½ years. Learned counsel for the appellants thereafter submitted that the present is a case of false implication wherein the boy aged about 20 years and another person who is aged about 23 years, have falsely been implicated. Learned senior counsel also pointed out from the record that Appellant No. 1 is in custody since approximately 3 years and 9 months whereas Appellant No. 2 was in custody during pendency of the trial since 19.05.2020 and thereafter he was released on bail by this Court on 28.02.2023. However, after the order of conviction was recorded on 23.06.2023 once again he was in custody. Thus, Appellant No. 2 has undergone sentence approximately three and half years. Learned counsel, therefore, urged that appellants be released on bail.

On the other hand, learned APP for the Respondent-State has opposed the request made by learned counsel for the appellants for grant of bail and for suspension of sentence by contending that serious allegation of gang rape is levelled against both the appellants. It is further submitted that as per the case of the prosecution, which is duly established through medical evidence that victim was aged about 17 years, i.e., she was minor on the date of occurrence. It is further submitted that merely because the medical evidence does not support the case of prosecution, benefit of the same may not be given to the appellants herein. Learned APP further submits that in the F.I.R., statement recorded under Section 164 of the Code as well as the deposition given before the Court, the victim has specifically levelled allegation against both the appellants and therefore, the Trial Court has not committed any error while passing the impugned order. It is further submitted that appellants have been sentenced to suffer R.I. for 20 years, they may not be enlarged on bail.

Having heard learned counsels appearing for the parties and having gone through the material placed on record as well as evidence led by the prosecution before the Trial Court, prima facie, it would emerge that there are major contradictions and improvements in the version given by the prosecution witnesses including the victim and her mother. It is true that this Court cannot re-appreciate the entire evidence at this stage. However, prima facie, it would emerge from the record that different stories have been put forward by the victim in Fardbeyan, in her statement given under Section 164 of the Code as well as before the Court. At this stage, it is required to be noted that the Doctor, i.e. PW-10, who has examined the victim has stated as under:-

"(I) USG REPORT: - on USG dt. 19-05-2020 Uterus size 5.6x3.3 cm. Endometrium thin

Finding:- Small collection in POD (POUCH OF DOGLUS/ REPROUTERIN CAVITY)

USG reports received by me on 05-06-2020.

OPINION – it is difficult to say that rape has been committed or not.

Further on examination any external or internal injury was not found on the private part of the victim.

Hymen-old torn and vagina- Normal

This medical was prepared by me at the presence of Dr. Madhu Sinha, same bears my own writing and signature. I identify the same accordingly same was marked as Ext- PW9/P5

CROSS EXAMINATION ON BEHALF OF ACCUSED

In my medical report I have not mentioned the number and name of assailants. At the time of examination vagina of victim was found to be normal. At the time of examination any type injuries on the body of victim or on her private part was not found. After examination any type medicine was not prescribed to the victim."

From the aforesaid deposition given by the Doctor, it is revealed that no external or internal injury was found on the private part of the victim and her private part was found to be normal.

At this stage, it is required to be observed that it is a case of the victim that the present appellants have committed gang rape on her and, therefore, aforesaid medical evidence is required to be kept in view while considering the case of the victim. It is also relevant to observe at this stage that, prima facie, the prosecution has not produced any documentary evidence with a view to prove the age of the victim, i.e. birth certificate or school register of the victim. Even from the medical evidence, i.e. from the deposition of P.W.-7, Dr. Aftab Kaleem, it was revealed that on the gauge of the radiological finding the age of the victim was determined as 17 years. The Trial Court has also recorded that age of the victim can be determined between 16- ½ to 17- ½ years. At this stage, it is also required to be noted that Appellant No. 1 is aged about 20 years whereas Appellant No. 2 is aged about 23 years and they are in custody since approximately three years and nine months and as the present appeal is of the year 2023, the same is not likely to be heard in near future.

Looking to the aforesaid facts and circumstances of the present case, we are inclined to consider the request made by the appellants for grant of bail.

It is needless to observe that the aforesaid observations are the tentative and prima facie observations made by this Court while considering the prayer made by the appellants under Section 389 (1) of the Code.

Accordingly, the above-named appellants are ordered to be released on bail during pendency of the present appeal on executing bond of Rs. 15,000/- (Rupees Fifteen Thousand) each and upon furnishing two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge VI-cum-Special Judge POCSO Act, Nawada in POCSO Case No. 22 of 2020, C.I.S. No. 37 of 2020, arising out of Rajauli P.S. Case No. 206 of 2020 and the sentence imposed by the trial court is suspended so far as appellants is concerned.

The appellants should co-operate in this Court till disposal of the appeal.

The sentence shall remain suspended in the meanwhile. Realization of fine shall remain stayed during the pendency of this appeal.