Patna High Court - Orders
Munna Yadav vs The State Of Bihar on 29 August, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3147 of 2024
Arising Out of PS. Case No.-35 Year-2013 Thana- BARUN District- Aurangabad
======================================================
Munna Yadav S/O Ramashish Yadav R/O Village- Raksani Digar Bigha, P.S-
Barun, Distt.- Aurangabad.
... ... Appellant/s
Versus
1. The State Of Bihar
2. Jagnarayan Sharma S/O Late Chatuk Sharma R/O Village- Preetampur, P.S-
Barun, Distt.- Aurangabad.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Thakur, Adv.
Mrs. Vaishnavi Singh, Adv.
Mr. Ritwik Thakur, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
3 29-08-20241. Heard learned counsel appearing on behalf of the parties.
2. The present matter is taken on board for considering the prayer of bail and suspension of sentence of above named accused/appellant during pendency of appeal under Section 389(1) of the Code of Criminal Procedure (in short Cr.P.C.) as raised through memo of appeal itself, which preferred under Sections 374(2) of the Cr.P.C.
3. This application has been filed by the Patna High Court CR. APP (SJ) No.3147 of 2024(3) dt.29-08-2024 2/7 convict/appellant against the judgment of conviction dated 07.06.2024 and order of sentence dated 12.06.2024 rendered by learned Additional Sessions Judge-VI- cum Special Exclusive Judge (POCSO), Aurangabad in POCSO Case No. 07 of 2017 arising out of Barun P.S. case No. 35 of 2013 by which the learned trial court has convicted the appellant for the offences punishable under Sections 366(A) and 376 of the IPC and Section 4 of the POCSO Act, sentenced the appellant to undergo rigorous imprisonment for seven years and fine of Rs. 25,000/-(Rupees Twenty Five Thousand) under Section 376 of IPC and further to undergo R.I. for seven years and fine of Rs. 25,000/- (Rupees Twenty Five Thousand) under Section 4 of the POCSO Act, in default of payment of fine he shall further undergo simple imprisonment for three months. All the sentences shall run concurrently.
4. Mr. Ajay Thakur, learned counsel Patna High Court CR. APP (SJ) No.3147 of 2024(3) dt.29-08-2024 3/7 appearing for the appellant submitted that despite of specific depositions of victim/PW-6 that she passed her matriculation examination in year 2012 itself, said certificate could not brought on record during the trial as to ascertain the age of victim/PW-6 which could be otherwise a best documentary evidence in view of Section 94(2) of the Juvenile Justice Act,2015 as to establish the victim as a child within the meaning of 2(1)(d) of the POCSO Act.
5. In support of his submissions learned counsel relied upon legal report of Hon'ble Supreme Court as available through Jarnail Singh vs. State of Haryana as reported in 2013 (7) SCC 263. It is submitted that as a matter of next recourse, to ascertain the age of victim/PW-6 the only option as available from record is her radiological age which in view of deposition of PW-10, appears that victim found between the age group of 16.5 years to 18 years and if the benefit of + 2 years be given Patna High Court CR. APP (SJ) No.3147 of 2024(3) dt.29-08-2024 4/7 as per settled principle of law then certainly the victim appears major on the date of occurrence and therefore also the convictions of appellant/convict as recorded under POCSO Act not appears convincing. It is further submitted by Mr. Thakur that the victim/PW-6 stated through her statement as recorded under Section 164 of the Cr.P.C. that she solemnized her marriage with appellant/convict, namely, Munna Yadav in Vishnupad temple at Gaya, out of her own sweet will on 29.12.2012 and wants to lead her conjugal life with appellant/convict. It is submitted that same statement of victim is available through her statement as recorded under Section 161 of the Cr.P.C. during course of investigation. It is submitted that victim first time raised allegation of rape as committed upon her by appellant during the trial, when she was examined as PW-6 which is nothing but an improved version as an afterthought to secure conviction. It is submitted that on the Patna High Court CR. APP (SJ) No.3147 of 2024(3) dt.29-08-2024 5/7 basis of such contradictions as available through statement of victim it can't be said that she qualified the test of "sterling witness" as to secure the conviction of appellant/convict on the basis of her sole testimony and therefore the conviction as recorded by ld. trial court also appears questionable on this ground alone. While concluding the argument, Mr. Thakur submitted that appellant/convict was throughout on bail during the trial and as this appeal is of year 2024 itself same is not likely to be taken up on board for final hearing in near future. It is submitted that in view of aforementioned submission balance of appeal is in favor of appellant, as such, the appellant/convict deserves to be enlarged on bail after suspending the sentence.
6. Learned APP while opposing the prayer for bail and suspension of sentence fairly conceded that matriculation certificate of victim was not brought on record as to Patna High Court CR. APP (SJ) No.3147 of 2024(3) dt.29-08-2024 6/7 ascertain her date of birth to established victim as a "child" within the meaning of Section 2(1)
(d) of the POCSO Act.
7. In view of aforesaid factual and legal submissions and by taking note of the fact as prosecution appears failed to establish victim as a child within the meaning of Section 2(1)(d) of POCSO Act, where she appears major in terms of radiological examinations where further from the contradictions as available through her statement and depositions it can be gathered safely that she failed to qualify the test of "sterling witnesses", coupled with the fact that appeal is of year 2024 and same is not likely to be taken up on board for final hearing in near future, accordingly, accused/appellant is directed to be released on bail, during the pendency of the appeal, furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned learned Additional Patna High Court CR. APP (SJ) No.3147 of 2024(3) dt.29-08-2024 7/7 Sessions Judge-VI- cum Special Exclusive Judge (POCSO), Aurangabad in POCSO Case No. 07 of 2017 arising out of Barun P.S. case No. 35 of 2013.
8. The sentence of imprisonment as imposed by the learned trial court against the appellant/convict shall remain suspended till disposal of the appeal. Realization of fine, if any, shall also be kept in abeyance, during the pendency of appeal.
9. The appellant/convict is directed to co-operate in final hearing of appeal.
10. Observations, as regard to merit of the case, if any, shall be of no bearing while final hearing of the appeal.
11. Re-notify this matter for final hearing as per its own seriatim.
(Chandra Shekhar Jha, J) Sudha/-
U T