Jharkhand High CourtSanjay Rajak vs The State Of Jharkhand on 6 November, 2023Author:Sujit Narayan PrasadBench:Sujit Narayan Prasad,Navneet Kumar1                  Cr. Appeal(DB) No.489/2023\n\n\n\n     IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                Cr. Appeal (DB) No.489 of 2023\n                                     ------Sanjay Rajak, aged about 23 years, son of Sitaram Rajak, resident\nof village-Mordiha, P.O. and P.S.-Thakurgangti, District-Godda,\nJharkhand                                  ....        ....               Appellant\n                                Versus\n\nThe State of Jharkhand                        ....        ....        Respondent\n\nCORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD\n        HON'BLE MR. JUSTICE NAVNEET KUMAR------For the Appellant         : Mrs. Chandana Kumari, Advocate\n        For the State             : Mrs. Snehalika Bhagat, A.P.P.------17/Dated: 06.11.2023\nPer Sujit Narayan Prasad, J:I.A. No.3253 of 20231.     The instant interlocutory application has been filed underSection\n\n389(1)of the Cr.P.C. for suspension of sentence dated 31.01.2023\n\npassed in Special POCSO Case No.10 of 2021 by the learned Special\n\nJudge (POCSO) Godda, in connection with Thakurgangti P.S. Case\n\nNo.74 of 2020, corresponding to G.R. Case No.284 of 2021, whereby\n\nand whereunder, the appellant has been convicted underSection 376\n\n(DA)of the IPC andSection 6of the POCSO Act and sentenced to\n\nundergo imprisonment for life, which shall mean imprisonment for the\n\nremainder of that person's natural life                          along with fine of\n\nRs.1,00,000/- and in default of payment of fine, he has to further\n\nundergo rigorous imprisonment for two years for the offence underSection 6of POCSO Act.2          Cr. Appeal(DB) No.489/20232.      The prosecution story as per F.I.R. in brief is that on\n\n23.12.2020, the daughter of the informant-Santlal Pandit was alone\n\nin her house. At 4 p.m. when the informant returned to his house, his\n\ndaughter was not present at house, thereafter they searched out the\n\nVictim. On 24.12.2020, the informant found his daughter behind the\n\nhouse of Doman Sah, in which, no one was living. After being asked,\n\nshe said that the accused Chhotu Pandit and Sanjay Rajak\n\n(appellant herein) had sexually assaulted her on allurement.3.       Accordingly, F.I.R being Thakurgangti P.S. Case No.74 of 2020\n\nhas been lodged for the offences undersection 376Dof the IPC and\n\nundersections 4/6of the POCSO Act.4.      Learned Counsel appearing for the appellant has submitted that\n\nit is a case where the prosecution has miserably failed to prove the\n\ncharge beyond all reasonable doubts. Such argument has been\n\nmade on the following grounds:(i) There are contradictions in the evidences of the victim in her\n\nstatement undersection 164Cr.P.C and deposition before the learned\n\ncourt which is evident from the statement of victim underSection 164Cr.P.C, wherein, she has stated that the accused persons including\n\nthe appellant have allured her and taken to adjacent house, whereas,\n\nin deposition before the court, she stated that her mouth was pressed\n\nand taken to the said place of occurrence.(ii)     As per the medical examination, no injury was found on the\n\nprivate part of victim.(iii)    There is no legal evidence to prove that there was any sexual3           Cr. Appeal(DB) No.489/2023penetration which is the most important ingredient to prove a case\n\nunderSection 6of the POCSO Act and in absence of the same, the\n\njudgment of conviction and order of sentence is illegal.(iv)   The prosecution has failed to follow the procedure prescribed\n\nunder Rule 12 of the Juvenile Justice Care and Protection of\n\nChildren) Rules, 2000, which is mandatory in nature and as such, the\n\nvictim cannot be said to be minor.(v)    Learned trial court has committed illegality in giving finding with\n\nregard to the age of the victim, save and except, the finding of the\n\ndoctor, which is never perfect evidence to find out the original age of\n\nthe victim.5.     Learned counsel for the appellant, on the aforesaid premise,\n\nhas submitted that it is a fit case where the sentence is required to be\n\nsuspended.6.     While, on the other hand, the learned APP appearing for the\n\nState has vehemently opposed the prayer for suspension of sentence\n\non the following grounds:(i) The contention of the learned counsel for the appellant that victim\n\nwas not minor at the time of occurrence is totally misconceived\n\nbecause P.W. 2 Dr. Usha Singh has medically examined the victim\n\nand submitted her age about 16 Years. Further, P.W. 3, Dr. Deepak\n\nKumar, Radiologist has also medically examined the victim and\n\ndetermined her age as 16 years. Therefore, it can be stated that at\n\nthe time of occurrence, victim was minor.(ii) It is admitted fact that no sign of sexual intercourse was found in4            Cr. Appeal(DB) No.489/2023the medical examination of the victim but from the record, it appears\n\nthat the medical examination of victim was conducted after delay of 4\n\ndays and that is the probable reason for the lack of medical evidence\n\nfor sexual assault.(iii)   It is settled connotation of law that in cases of sexual assault,\n\nthe statement of prosecutrix may alone form the basis of conviction.(iv)    Social feedback of the neighbors and common villagers\n\nregarding the release of the accused appellant is negative as per the\n\nReport of concern Police Station which is appended as Annexure-1 to\n\nthe objection affidavit as filed by the state.(v)       Further,Sections 29and30of the POCSO Act raised a\n\nstatutory presumption against the accused/appellant regarding his\n\nculpable mental state or regarding commission of offence by him\n\nunless contrary is proved.7.      Learned A.P.P, based upon the aforesaid argument, has\n\nsubmitted that it is not a case where sentence is required to be\n\nsuspended.8.      This Court has heard learned counsel for the parties, perused\n\nthe finding recorded by learned trial Court in the impugned order as\n\nalso the testimonies of the witnesses including the documents\n\navailable in Lower Court Records.9.       This Court, before appreciating the argument advanced on\n\nbehalf of parties and in order to examine as to whether in the given\n\nfacts of the case it is a fit case where sentence is to be suspended,\n\ndeems it fit and proper to refer the settled position of law regarding5        Cr. Appeal(DB) No.489/2023consideration to be made at the time of suspension of sentence, as\n\nhas been settled by Hon'ble Apex Court inPreet Pal Singh vs. State\n\nof U.P., reported in (2020) 8 SCC 645 has held at paragraphs 32 and\n\n35 as under:"32.InMauji Ram v. State of U.P.[ (2019) 8 SCC\n\n          17] , this Court referred toAjay Kumar Sharma v.\n\n          State of U.P.[ (2005) 7 SCC], Lokesh Singh v. State\n\n          of U.P. [ (2008) 16 SCC 753] and Dataram Singh v.\n\n          State of U.P. [ (2018) 3 SCC 22] and stated\n\n          categorically that this Court had time and again\n\n          emphasised the need for assigning reasons while\n\n          granting bail.35. There is a difference between grant of bail underSection 439CrPC in case of pre-trial arrest and\n\n          suspension of sentence underSection 389CrPC\n\n          and grant of bail, post-conviction. In the earlier case,\n\n          there may be presumption of innocence, which is a\n\n          fundamental postulate of criminal jurisprudence, and\n\n          the courts may be liberal, depending on the facts\n\n          and circumstances of the case, on the principle that\n\n          bail is the rule and jail is an exception, as held by\n\n          this Court in Dataram Singh v. State of U.P.\n\n          [Dataram Singh v. State of U.P., (2018) 3 SCC 22 :(2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of6              Cr. Appeal(DB) No.489/2023the sentence, there is a finding of guilt and the\n\n           question of presumption of innocence does not\n\n           arise. Nor is the principle of bail being the rule\n\n           and jail an exception attracted, once there is\n\n           conviction        upon     trial.   Rather,    the        court\n\n           considering an application for suspension of\n\n           sentence and grant of bail, is to consider the\n\n           prima facie merits of the appeal, coupled with\n\n           other    factors.        There      should     be        strong\n\n           compelling        reasons        for   grant        of     bail,\n\n           notwithstanding an order of conviction, by\n\n           suspension of sentence, and this strong and\n\n           compelling reason must be recorded in the order\n\n           granting bail, as mandated inSection 389(1)CrPC."10. It is evident from the aforesaid judgment, that during considering\n\nsuspension of sentence undersection 389of Cr.P.C which is the\n\npost-conviction stage, the presumption of innocence in favour the\n\naccused cannot be available and at this stage, the Court's only duty is\n\nto see that the prima-facie case is made out or not.11.   Recently, the Hon'ble Apex Court in the case ofOmprakash\n\nSahni v. Jai Shankar Chaudhary & Anr., (2023) 6 SCC 123 has\n\nbeen pleased to hold that the appellate court should not reappreciate\n\nthe evidence at the stage ofSection 389CrPC and try to pick up a\n\nfew lacunae or loopholes here or there in the case of the prosecution.7           Cr. Appeal(DB) No.489/2023Such would not be a correct approach.12.   We are now proceeding to examine material available on record\n\nand the rival submissions advanced on behalf of parties.13.    From perusal of the record, it is evident from the testimony of\n\nP.W. 2, Dr. Usha Singh who has medically examined the victim and\n\nsubmitted the age of victim about 16 Years. Further P.W.3, Dr.\n\nDeepak Kumar, Radiologist who was the member of the Medical\n\nBoard which was constituted for the determination of the age of the\n\nvictim, has also medically examined the victim and determined her\n\nage as 16 years. Further P.W.4, Dr. Kumari Sushma who was also\n\nthe member of the Medical Board has found the age of victim near\n\nabout 16 years on the basis of dental examination of the victim.14.   Thus, it is evident from the deposition of P.W.2, 3 and 4 that at\n\nthe time of occurrence, the age of victim was 16 years and as per the\n\nstipulation made underSection 2(d)of the Juvenile Justice Act she\n\nwas child at the time of the said occurrence and as such, the consent\n\nof such minor is immaterial for sexual act.15.    It is apparent from the testimony of victim/prosecutrix (P.W.1)\n\nthat she has fully substantiated the case of the prosecution. In her\n\nexamination-in-chief, she has stated that accused persons including\n\nthe appellant had pressed her mouth and taken away her in the\n\nKhandahar (carcase) and committed rape upon her. The testimony of\n\nP.W.1 has been fully substantiated by the testimony of the P.W.7\n\nmother of deceased and P.W.8, the informant and father of the victim.16.     P.W. 8 has categorically stated in his testimony that his8           Cr. Appeal(DB) No.489/2023daughter has stated to him about the offence of rape committed with\n\nher by the accused persons. He has further deposed that he found\n\nthe victim near the Khandahar (carcase) house of Doman Shah.17.   Further, P.W.7 has testified in her testimony that victim has told\n\nher that the accused including the appellant committed rape with her\n\nin Khandahar, (carcase) house of Doman Shah and the victim was\n\nfound at the said place of occurrence.18.    Thus, the deposition of the victim before the Court has been\n\nfortified by the testimonies of the P.W.7 and P.W.8.19.   The foremost argument which has been advanced on behalf of\n\nappellant is that as per the medical report, victim was not subjected to\n\nthe sexual assault, therefore, appellant cannot be held liable for the\n\nsaid offences.20.   In this context, it is pertinent to mention here that in such type of\n\nheinous crime, conviction can be based upon the sole testimony of\n\nthe prosecutrix. Corroboration is not a sine qua non for a conviction in\n\nrape case. However, it depends upon that how much confidence is to\n\nbe transpired from the testimony of the prosecutrix.21.   This Court, on the basis of the said position of law and coming\n\nback to the material available on record has found that the victim\n\n(P.W.1), who has subjected to sexual assault by the appellant, has\n\nsupported the prosecution version and the testimony of the victim has\n\nbeen fully corroborated by P.W.7 and 8.22.   From the record, it appears that the medical examination of\n\nvictim was conducted after delay of 4 days and it cannot be ruled out9           Cr. Appeal(DB) No.489/2023that it is the probable reason that there is no medical evidence of\n\nsexual assault.23.        Further, underSection 29of POCSO Act, a mandatory\n\npresumption qua certain offences is to be drawn against the accused\n\nin a prosecution for offences under this Act, unless the contrary is\n\nproved. Similarly,Section 30of POCSO Act mandates that the\n\nSpecial Court shall draw a presumption of the existence of culpable\n\nmental state of the accused where culpable mental state is required\n\non the part of accused, it shall be a defence for the accused to prove\n\nthe fact that he had no such mental state with respect to the act\n\ncharged as an offence in that prosecution.24.      This Court, considering the aforesaid facts and after taking into\n\nconsideration the settled proposition of law as also the mandate of\n\nthe provision of thePOCSO Act, prima-facie is of the view that it is\n\nnot a fit case where sentence is required to be suspended.25.     Accordingly, interlocutory application being I.A. No.3253 of 2023\n\nstands dismissed.26.     It is made clear that any observation made herein will not\n\nprejudice the issue on merit as the appeal is lying pending for its\n\nconsideration.27.      Let a copy of this order be forwarded to the appellant through\n\nJail Superintendent.(Sujit Narayan Prasad, J.)\n\n\n\n      Rohit/-                            (Navneet Kumar, J.)