Shyam Sundar Das vs State Of Jharkhand

Heard learned counsel for the appellant and learned A.P.P. for the State on the prayer for suspension of sentence made through I.A. No. 2523 of 2019.

Sole appellant stands convicted in connection with G. R. No. 1060 of 2016/Special (POCSO) Case No. 04/2016 by the impugned judgment dated 7th January, 2019 rendered by the Court of learned District & Additional Sessions Judge-I-cum-Special POCSO Court, Koderma for the offence punishable under Section 366-A and 376 of I.P.C and also under Section 4 read with Section 3(i) of the POCSO Act, 2012 and has been sentenced to undergo R.I. for 14 years with a fine of Rs. 10,000/- and a default sentence under Section 4 of POCSO Act and also sentenced to undergo R.I. for 5 years with a fine of Rs. 5,000/- and a default sentence under Section 366 of I.P.C. No separate sentence has been awarded under Section 376 I.P.C in the light of Section 42 of POCSO Act by the impugned order of sentence dated 10th January, 2019.

Learned counsel for the appellant has taken us through the evidence on record, specifically of the victim (P.W.2) in her statement made under Section 164 Cr.P.C (Ext.2). Medical report (Ext.-3) proved by the doctor (P.W.8) as also of other Prosecution Witness no. 5, mother of the victim and P.W.9, Investigating Officer. Learned counsel for the appellant points out that Fardbeyan was recorded by brother of the victim (P.W.1) alleging that the victim had gone to "Mela" on 11th October, 2016. He got information from her maternal grandmother that victim has been missing. F.I.R was registered on 13th October, 2016 when the victim returned and started weeping stating that she had been taken to Dhanbad by four accused persons and had been raped by them. The victim (P.W.2) has given contradictory version in her deposition during trial as compared to her statement made under Section 164 Cr.P.C before Judicial Magistrate (Ext.-2). As per statement made under Section 164 Cr.P.C, there was no allegation of rape upon her. As a matter of fact, she stated that she was carried by four accused persons (three of them have been declared Juvenile) on train from Jainagar to Dhanbad in the night of 11th October, 2016. P.W.8, Dr. Alankrita Mandal, who examined the victim one day after institution of F.I.R i.e. on 14th October, 2016 found hymen was upset, two fingers easily inserted into vagina and suggestive of sexually experienced. No spermatozoa was found in the vaginal swab. It is submitted that there is no proof of age of the victim adduced during trial, though Investigating Officer has stated that during investigation that he had found Adhar-Card of the victim having year of birth as 1999. It is submitted that appellant has been falsely implicated in the instant case and has been wrongly convicted on practically no reliable evidence. Therefore, appellant may be enlarged on bail during pendency of this appeal.

Learned counsel for the State has opposed the prayer. It is submitted that the case of the prosecutrix is of abduction and rape of minor. As per the statement of P.W.5, mother of the victim, she was between 16-17 years of age. The victim was recovered after two days on 13th October, 2016 since she went missing due to abduction by the appellant and three accused persons (three of them have been declared Juvenile). It is submitted that medical report should not overrule the ocular testimony of the minor girl (P.W.2). Therefore, the appellant should not be enlarged on bail.

We have considered the submission of learned counsel for the appellant and State. We have also taken note of the facts and circumstances including the relevant material evidence relied upon by the parties from Lower Court Records.

On perusal of the materials on record, in particular the statement of the victim under Section 164 Cr.P.C as compared to the allegation made in the F.I.R and her testimony during trial as also the evidence of Doctor (P.W.8), who examined the victim on 14th October, 2016 (Ext.3), we consider it proper to enlarge the appellant on bail during pendency of this appeal. As such, let the appellant, Shyam Sundar Das be released on bail, during pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned District & Additional Sessions Judge-I-cum-Special POCSO Court, Koderma in connection with G. R. No. 1060 of 2016/Special (POCSO) Case No. 04/2016, arising out of Jainagar P.S. Case No. 171/2016, subject to the condition that appellant and his bailors will not change their address without prior permission of Trial Court.

I.A. No. 2523 of 2019 stands allowed accordingly.

I. A No. 5434 of 2019 is dismissed as not pressed.