Patna High Court - Orders
Heera Das vs The State Of Bihar on 6 April, 2022
Author: A. M. Badar
Bench: A. M. Badar, Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.103 of 2019
Arising Out of PS. Case No.-94 Year-2013 Thana- MUSRIGHRARI District- Samastipur
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HEERA DAS son of Late Chulhai Das Resident of village- Gangapur, P.S.-
Musrigharari, District - Samastipur.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sujit Kumar Singh, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
9 06-04-2022I.A. No.2 of 2021:
This is an application for suspension of sentence and for releasing the applicant/appellant on bail during the pendency of the appeal. He is convicted of the offence punishable under Section 376 of the Indian Penal Code as under well as Section 6 of the POCSO Act and is sentenced to suffer imprisonment for life on each count.
The learned counsel appearing for the applicant/ appellant argued that there was no charge for the offence punishable under Section 376 of the Indian Penal Code as well as under Section 6 of the POCSO Act. It is further argued that the charge-sheet has been filed under Section 376 read with Patna High Court CR. APP (DB) No.103 of 2019(9) dt.06-04-2022 2/4 Section 511 of the Indian Penal Code and under Section 8 of the POCSO Act and therefore there is an error apparent on the face of the record. It is further argued that the medical evidence is not supporting the case of the prosecution as the Medical Officer examined by the prosecution has deposed that there is no evidence of commission of rape on the victim. The learned counsel for the applicant/appellant further argued that evidence regarding medical treatment of the victim is also contradictory as the grandmother has spoken about medical treatment at the village whereas the mother has spoken about the medical treatment at Patna. The prescription as well as blood stained clothes were not given to the Investigating Officer.
The learned A.P.P. opposed the application by contending that the victim has supported the case of the prosecution.
We have considered the submissions so advanced. Earlier the bail application of the applicant/appellant was rejected by the coordinate Bench of this Court on merits. Hence, this Court cannot sit as a court of appeal over the order passed by the Coordinate Bench of this Court.
It is well settled that in cases of sexual offences, the Court is required to keep in mind broader probabilities of the Patna High Court CR. APP (DB) No.103 of 2019(9) dt.06-04-2022 3/4 prosecution case and not to sway itself on the basis of insignificant omissions or contradictions in the case of the prosecution. It is crystallized as of now that non-availability of the medical evidence is of no consequence in the sexual offences. Moreover, we find absolutely no merit in the contention of the learned counsel for the applicant that medical evidence is not supporting the case of the prosecution. This is a case of penetrating sexual assault on the minor female child of 5 years of age. The incident took place on 14.06.2013 whereas the victim was subjected to medical examination on 25.07.2013, i.e. more than a month after the date of the incident and as such possibility of availability of medical evidence cannot be there.
The victim herself has spoken about the penetrating sexual assault on her by the applicant. The eye witnesses have also spoken about the discharge of blood from the vagina of the minor female child. Whether she was medically treated at Patna or at village is of no consequence as the Criminal Court is not supposed to have proof of the mathematical precision.
In this view of the matter, considering the nature of the crime and the manner in which it is committed, no case for grant of bail to the applicant is made out even though the applicant might be under custody from the year 2013. Patna High Court CR. APP (DB) No.103 of 2019(9) dt.06-04-2022 4/4 Accordingly, the prayer of the applicant/appellant for suspension of sentence and releasing him on bail is rejected. The Registry is directed to take necessary steps for listing the appeal for final hearing.
I.A. No.2 of 2021 stands disposed of.
(A. M. Badar, J) ( Prabhat Kumar Singh, J) P.S./-
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