Patna High Court - Orders
Ram Niwas Ram vs The State Of Bihar on 26 February, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1061 of 2023
Arising Out of PS. Case No.-17 Year-2022 Thana- MAHILA P.S. District- Kaimur (Bhabua)
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Ram Niwas Ram Son Of Ram Bachan Ram @ Ramvachan Ram R/O Village
Kuddi , P.S. - Chand , District Kaimur At Bhabua
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant : Mr. Tribhuwan Narayan, Advocate
For the Respondent : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
5 26-02-2024Heard Mr. Tribhuwan Narayan, learned counsel for the appellant and Mr. Bipin Kumar, learned A.P.P for the Respondent-State.
2. The present appeal has been admitted by this Court. However, learned counsel for the appellant argues the matter for grant of bail and for suspension of sentence till final disposal of the appeal.
3. Learned counsel for the appellant mainly submitted that the Trial Court has specifically observed in Para-26 of the impugned judgment that physical relationship of the victim with the accused certainly appears consensual but considering the minor age of the victim who is below 16 years, the accused is Patna High Court CR. APP (DB) No.1061 of 2023(5) dt.26-02-2024 2/6 responsible under the category of the statutory rape of the victim. Thus, on this ground the appellant has been convicted against the judgment of conviction dated 22.08.2023 and order of sentence dated 28.08.2023 rendered by the learned Special Judge, POCSO Court cum Additional Sessions Judge-VI, Kaimur at Bhabhua in POCSO Case No. 18 of 2022, CIS No.- POCSO 18 of 2022, (Arising out of Mahila P.S. Case No. 17 of 2022) whereby, the appellant has been convicted for the offences punishable under Sections 366 and 376(3) of the Indian Penal Code and Sections 4 and 8 of the POCSO Act and sentenced to undergo RI for 20 years and fine of Rs. 50,000/- for the offence punishable under Section 376(3) of the Indian Penal Code and in default of payment of fine, the appellant shall have further to undergo R.I. for one year, further sentenced to undergo R.I. for five years and to pay fine of Rs. 20,000/- for the offence punishable under Section 366 of the Indian Penal Code and in default of payment of fine, the appellant shall have further to undergo R.I. for six months, further sentenced to undergo R.I. for three years and to pay fine of Rs. 10,000/- for the offence punishable under Section 8 of the POCSO Act and in default of payment of fine, the appellant shall have further to undergo R.I. for two months. All the sentences shall run Patna High Court CR. APP (DB) No.1061 of 2023(5) dt.26-02-2024 3/6 concurrently.
4. Learned counsel has referred to the deposition of the prosecution witnesses and thereafter submitted that as per the case of the prosecution, the accused-appellant, Ram Niwas Ram had forcibly entered into a sexual relationship with the victim for two days.
5. At this stage, learned counsel for the appellant has referred the deposition given by P.W.-5, Dr. Indu Priyadarshani who has stated in her deposition that incident of rape cannot be ascertained and there is no evidence of physical and genital assault, no marks of violence found on any part of her body. Learned counsel for the appellant, therefore, urged that even the allegation of rape levelled against the appellant is not duly proved by the medical evidence. It is also submitted that appellant is aged about 20 years and he is in custody since more than one year and nine months and, therefore, the appellant be released on bail and more particularly by considering the fact that the present appeal is of the year 2023 and the same is not likely to be heard in the near future.
6. On the other hand, learned APP for the Respondent- State has opposed the request made by learned counsel for the appellant submitting that the age of the victim is 16 years and Patna High Court CR. APP (DB) No.1061 of 2023(5) dt.26-02-2024 4/6 the same is duly proved before the Trial Court. It is further submitted that the victim, P.W.-1, specifically levelled allegation against the appellant by giving deposition before the Court and, therefore, her deposition is required to be believed. Learned APP, therefore, urged that the Trial Court has convicted the appellant for serious offences punishable under Sections 366 and 376(3) of the Indian Penal Code and Sections 4 and 8 of the POCSO Act and sentenced to undergo R.I. for 20 years. Thus, this case for bail cannot be considered.
7. We have considered the submissions canvassed by the learned counsel appearing for the parties. We have also perused the record and the LCR. From the evidence led before the Trial Court, prima facie, it would reveal that the age of the appellant is 20 years and from the evidence led before the Trial Court, the Trial Court has recorded specific finding in Para-26 of the impugned judgment that the physical relationship of the victim with the accused certainly appears consensual but considering the minor age of the victim below 16 years, the accused is responsible under the category of statutory rape of the victim. Thus, on the aforesaid observation and finding recorded by the Trial Court, it appears that the present is the case of consent and merely because the victim is aged about 16 Patna High Court CR. APP (DB) No.1061 of 2023(5) dt.26-02-2024 5/6 years, the appellant has been convicted. It is further, prima facie, revealed from the record and more particularly the deposition of the independent witness, P.W.-8, Dr. Avinash Bahadur, who was part of the medical board, that the age of the victim was assessed between 17 to 19 years. Further, P.W.-9, Dr Indu Priyadarshani has stated in Para 15 of the impugned judgment has been held as under:-
"15. PW.5 Dr. Priyadarshani is the medical officer who examined the victim on 26.05.2022 at Sadar Hospital Bhabua. She has proved her medical report which has been marked as Ext. P-2/PW5. It is reported in the medical report that - examination of clothes - already she had taken bath and changed her clothes. No marks of violence found over any part of her body and external genitalia and its neighbourhood areas. No white or red patches found over external genitalia and its neigbourhood area either dried or wet. No foreign hair found. Internal examination - pathological report shows no spermatozoa found either dead or alive. Hymen membrane old ruptured and healed. No internal injury found. Report of USG is normal and urine pregnancy test negative. On the basis of finding and investigation she opined that there is no evidence of physical and genital assault. Incidence of recent rape can not be ascertained."
Thus from the aforesaid facts and circumstances of the case, prima facie, it appears that the medical evidence does not support the case of the victim.
8. Looking to the overall facts and circumstances of the present case, we are inclined to consider the case of the appellant for grant of bail, accordingly, appellant is ordered to Patna High Court CR. APP (DB) No.1061 of 2023(5) dt.26-02-2024 6/6 be released on bail during pendency of the present appeal on executing bond of Rs. 15,000/- (Rupees Fifteen Thousand) and upon furnishing two sureties of the like amount each to the satisfaction of learned Special Judge, Exclusive POCSO Court cum A.D.J.-VI, Kaimur at Bhabhua in connection with POCSO Case No. 18 of 2022, CIS No.-POCSO 18 of 2022, (Arising out of Mahila P.S. Case No. 17 of 2022) and the sentence imposed by the trial court is suspended, so far as this appellant is concerned.
9. It is clarified that the aforesaid observations are the tentative observations made by this Court while considering the request of the appellant for grant of bail.
10. The appellant should co-operate in this court till disposal of the appeal.
11. The sentence shall remain suspended in the meanwhile. Realisation of fine shall remain stayed during the pendency of this appeal.
(Vipul M. Pancholi, J) ( Sunil Dutta Mishra, J) ashishkr/-
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