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2025 DIGILAW 905 (JHR)

Amitabh Dutta v. State of Jharkhand

2025-03-18

PRADEEP KUMAR SRIVASTAVA, SUJIT NARAYAN PRASAD

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JUDGMENT : 1 . The instant interlocutory application has been filed under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for suspension of sentence dated 19.11.2024 passed by the learned Special Judge-POCSO Act, Dhanbad in Special (POCSO) Case No.62 of 2022, in connection with Bankmore P.S. Case No.311 of 2021, whereby and whereunder, the appellant has been sentenced to undergo R.I. for 20 years along with fine of Rs.10,000/- for the offence under Section 6 of the POCSO Act and in default of payment of fine, he shall further undergo one month additional imprisonment. 2. It has been contended by Mr. Prakhar Harit, learned counsel for the appellant that the entire prosecution version even if taken to be correct then also no case either of Section 376 of the IPC or Section 6 of the POCSO Act is being made out. The said submission has been made on the basis of the fact that the testimony of the victim, who has been examined as P.W.1, cannot be said to be trustworthy, reason being that, she although has stated about the commission of sexual assault/rape, but her testimony itself is contradictory and as such, merely on the basis of testimony of P.W.1, the victim, the conviction cannot be said to be proper. 3. It has been contended that even the age of the prosecutrix cannot be said to be established in pursuance to the provision of law as provided under Section 94 of the Juvenile Justice Act, 2015. 4. It has further been contended that the age of the victim has been assessed to be age of seventeen years but if the entire testimony will be read out including the testimony of Doctor, P.W.3 who has examined the victim, then, it would be evident that the age of the victim, cannot be said to be conclusively proved. 5. The argument has been advanced that the learned Trial Court has not taken into consideration the plea of not residing in the Apartment where the occurrence has been said to be committed, rather, the document has been appended by way of defence document showing therein the agreement which the appellant has taken for the purpose of living in the rental house at Ranchi, but even the same has not been taken into consideration. The Doctor has also not found any injury. 6. The Doctor has also not found any injury. 6. The further ground has been taken that even the fact about abortion which has been said to be taken place in the Matri Sadan Hospital, cannot be said to be conclusively proved, since, no cogent document has been brought by the prosecution to establish the fact that the victim was subjected to abortion in the said nursing home. 7. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that it is therefore a fit case for suspension of sentence. 8. While on the other hand, Mr. Manoj Kr. Mishra, learned APP appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence. 9. It has been contended by referring to the testimony of P.W.1, the victim, who all along has supported the prosecution version. 10. It has been submitted by referring to the statement recorded under Section 164 of the Cr.P.C., wherein also, the victim has fully supported the prosecution version and she remained consistent in her examination/cross-examination. 11. So far as the issue of age is concerned, the same cannot be said to be not conclusively proved, reason being that, the same has been dealt with by the learned Trial Court at paragraph-30, wherein, the age of the victim has been found to be less than eighteen years based upon the certificate issued by the School which has been marked as Ext.P-5/1/C.W.1, which has been proved by Author of the said document, who has been examined as C.W.1. 12. It has been contended that the victim has been subjected to rape and she was also subjected to abortion for more than thrice and to that effect, the testimony of P.W.3, the Doctor is in support. 13. Learned State Counsel, based upon the aforesaid grounds, has submitted that it is therefore not a fit case for suspension of sentence. 14. We have heard the learned counsel for the parties and gone across the finding recorded by the learned trial court in the impugned judgment as also the testimony of the witnesses along with other exhibits, as available in the Trial Court Records. 15. This Court, in order to appreciate the arguments advanced on behalf of the parties, has considered the issue of assessment of age of the victim. 16. 15. This Court, in order to appreciate the arguments advanced on behalf of the parties, has considered the issue of assessment of age of the victim. 16. We are conscious that assessment of age is to be based upon the provision of Section 94 of the Juvenile Justice Act, 2015. 17. The material as available in the Trial Court Records suggest that the age of victim has been assessed to be 17 years. The learned Trial Court has considered the issue of age based upon the certificate issued from the school, which has been marked as Ext.P- 5/1/C.W.1. C.W.1 is the Author of the said certificate. The basis of issuance of said certificate was the attendance register and the transfer certificate. 18. This Court, therefore, is of the view that it cannot be said that the issue of age has not conclusively been proved if it is based upon the admission register of the school where the victim was said to study in the said School upto Class-VII. 19. Adverting to the merit of the case regarding the culpability said to be committed by the present appellant, this Court has considered the testimony of P.W.1, the victim. Prior to that, this Court has also considered her statement recorded under Section 164 of the Cr.P.C. and found that the prosecution version has fully been supported. The said statement has also been supported by the victim, P.W.1 in her examination-in-chief and she remained consistent in her cross-examination. 20. We, after going through the fact in entirety, have found that each and every aspect of the matter has been deposed by her (the victim) in course of trial. The other witnesses have also supported the prosecution version, i.e., the P.W.2 (mother of the victim), P.W.3 (Doctor) and P.W.7 (Investigating Officer). We have also considered the statement recorded under Section 313 of the Cr.P.C. and found that no specific plea in his defence of false implication has been taken. 21. This Court, considering the aforesaid fact, is of the view that the appellant has not been able to make out a prima-facie case for suspension of sentence. 22. Accordingly, the interlocutory application being I.A. No.13890 of2024 stands dismissed. 23. It is made clear that any observation made herein will not prejudice the issue on merit as the appeal is lying pending for its consideration.