Patna High Court - Orders
Dinesh Bhuiya vs The State Of Bihar on 13 August, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.565 of 2023
Arising Out of PS. Case No.-73 Year-2020 Thana- AMAS District- Gaya
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Dinesh Bhuiya, son of Raj Kumar Bhuiya, Resident of Village- Chhotka
Bahera, Police Station- Amas, District -Gaya
... ... Appellant/s
Versus
1. The State of Bihar
2. Vijay Yadav, S/o Kailash Yadav, R/o vill - Chhotka Banera, P.S. - Amas,
Distt. - Gaya
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Jitendra Prasad Singh, Advocate
Mr. Rajeev Kumar, Advocate
Mrs. Sripriya Sinha, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
7 13-08-2024Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.
2. Earlier notice was issued to respondent no. 2 which was validly served, but he has not entered appearance.
3. The records have been placed before this Court after receipt of the trial court's records to consider the prayer of the appellant for suspension of his sentence and release on bail during pendency of the appeal.
4. The appellant has been convicted and sentenced vide judgment and order dated 22.02.2023 and 27.02.2023 Patna High Court CR. APP (DB) No.565 of 2023(7) dt.13-08-2024 2/7 respectively passed by the learned Exclusive Special Judge, POCSO-cum-Additional Sessions Judge-VII, Gaya in POCSO Case No. 95 of 2020 arising out of Amas P.S. Case No. 73 of 2020 for the offence punishable under Sections 4, 6 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') and Sections 376D/34, 366A/34 of the Indian Penal Code (in short 'I.P.C.'). The appellant has been ordered to undergo a sentence of R.I. for life and a fine of Rs. 50,000/- for the offence punishable under Section 4 of the POCSO Act. He has been further ordered to undergo R.I. for life and fine of Rs. 50,000/-for the offence punishable under Section 6 of the POCSO Act. He has been further ordered to undergo R.I. for life and fine of Rs. 50,000/- for the offence punishable under Section 376D/34 of I.P.C. He has been further ordered to undergo R.I. for five years and fine of Rs. 25,000/- under Section 366A/34 of the I.P.C. In case of default of the payment of the aforesaid fine, the appellant has been further ordered to undergo S.I. for six months for each offence punishable under Section 4, 6 of the POCSO Act and Section 376D/34 of the Indian Penal Code and S.I. for three months under Section 366A/34 of the I.P.C. All the sentences are ordered to be run concurrently.
5. As per the prosecution story, on the alleged date and time of occurrence, the appellant and one other co-accused, Patna High Court CR. APP (DB) No.565 of 2023(7) dt.13-08-2024 3/7 namely, Chhotu Choudhary @ Mukhiya Choudhary were wandering near the house of the informant. On being asked by the informant, they replied that they have got some work. Thereafter, the informant went to his field. When the informant returned, he found that his daughter is not in the house. The informant has got belief that the appellant and the aforesaid co-accused have kidnapped his daughter.
6. Learned counsel for the appellant submits that it would appear from the written report submitted by the father of the victim girl (P.W.-1) that the written report was submitted on 25.04.2020 at about 8.05 pm and the same was registered on the same day at 8.05 pm. In the written report, the father of the victim girl had not disclosed that the victim girl had returned and had already been brought to the police station with her mother.
7. It is submitted that in course of his evidence, P.W.-1 has stated in paragraph 11 that his daughter had returned in the morning after the date of occurrence, she had returned at about 12:00 noon and thereafter she had gone to police station with her mother where she had stayed for about three days. It is submitted that the first version of the prosecution case seems to have been suppressed. The victim girl had gone to police station on 25.04.2020 at 12:00 noon. But her statement had been recorded by police under Section 161 Cr.P.C. on 27.04.2020. It is, Patna High Court CR. APP (DB) No.565 of 2023(7) dt.13-08-2024 4/7 therefore, evident that after suppressing the first version of the victim girl, a written report was taken from the father of the victim at about 8.05 pm and on that basis, the F.I.R. was registered.
8. Learned counsel further submits that the statement of the victim girl recorded under Section 161 Cr.P.C. would reveal that on her statement, police obtained her signature. Her signature has been marked as Exhibit-3, this according to learned counsel for the appellant would be hit by Section 162 Cr.P.C. According to her statement under Section 161 Cr.P.C., this appellant had kept the victim girl in the forest for the whole night and thereafter this appellant had made phone call to his father whereafter the villagers came in the forest and she went with the villagers. It is submitted that the statement of the victim gives a completely different picture. Learned counsel further submits that even as P.W.-1 has claimed that his daughter was aged about 16 years, her mother has stated that she was 12 years old. Both the statements are not in consonance with the opinion of the doctor, who has assessed the age of the victim approaching 18 years. It shows that the parents of the victim girl were trying to implicate the appellant under the provisions of the POCSO Act and for that reason, they were suppressing the age of the victim. The School Admission Register was not proved by the principal of the school. Patna High Court CR. APP (DB) No.565 of 2023(7) dt.13-08-2024 5/7
9. Learned counsel further points out that the case of the prosecution is that this appellant had committed rape on the victim but it seems to be a case of scuffle which has been exaggerated and converted into a case of POCSO. Medical examination report shows a mark of bruise on left forearm about 1½" in length and ½" in breadth . The doctor has recorded that hymen was intact, there was no marks of any injury, no alive or dead spermotozoa was seen in the provided urine swab smear and doctor finally opined that " though there is no recent sign of sexual intercourse, rape cannot be denied."
10. Learned counsel submits that in the kind of the materials on the record, if two views would be possible, the view which would benefit the convict would be required to be taken. Apparently no case of rape is being made out and the prosecution evidence are not wholly reliable. The appellant is in custody from 05.05.2020, this appeal is of the year 2023 and is not likely to be heard in near future.
11. The prayer of the appellant has been opposed by learned A.P.P. for the State. It is submitted that even though the doctor has found the hymen intact, no mark of the injury on the private part of the victim, but the victim and her parents have supported the prosecution case. It is submitted that in the kind of materials on the records, the appellant would not deserve Patna High Court CR. APP (DB) No.565 of 2023(7) dt.13-08-2024 6/7 privilege of suspension of sentence and release on bail.
12. We have heard learned counsel for the appellant and learned A.P.P. for the State and for the purpose of taking a prima facie view in the matter of grant of suspension of sentence and release on bail, we have also perused the records. We find substance in the submission of the learned counsel for the appellant that the prosecution case seems to have been suppressed. The victim had come back on 25.04.2020 itself at 12:00 noon and then she had gone to police station with her mother. What was her first version before the police which had not been recorded and only in the night hour at about 8.05 pm, on the basis of written report of the father of the victim, this case was lodged. Further, the statement of the victim was recorded on 27.04.2020 and that statement gives a different picture. The medical opinion of the doctor shows that the hymen of the victim was intact which would not be possible in case of penetrative sexual act, in fact, the doctors have opined that there is no sign of recent sexual act. In the circumstances, having noticed that the appellant has already spent more than four years three moths in incarceration and this appeal is not likely to be heard in near future, we found prima facie view that the appellant would deserve privilege of suspension of sentence and release on bail.
13. We accordingly order so.
Patna High Court CR. APP (DB) No.565 of 2023(7) dt.13-08-2024 7/7
14. Let the sentence of the appellant be suspended and he be released on bail during pendency of the appeal, on furnishing bail bond of Rs.25,000/-(Rupees Twenty Five Thousand Only) with two sureties of the like amount each to the satisfaction of learned Exclusive Special Judge, POCSO-cum-- Additional Sessions Judge VII, Gaya in connection with POCSO Case No. 95 of 2020 arising out of Amas P.S. Case No. 73 of 2020.
15. The fine, if any, imposed as part of sentence shall remain suspended during pendency of the appeal.
16. List this appeal for hearing on it's turn.
(Rajeev Ranjan Prasad, J) ( Khatim Reza, J) Premchand/ Sankalp-
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