- (1.) Heard learned counsel for the appellant Mrs. Abha Verma and learned counsel for the State Mrs. Priya Shreshtha, Additional Public Prosecutor. The appeal has been preferred on behalf of the appellant by the Jharkhand High Court Legal Services Committee. Learned counsel for the appellant has submitted that the appellant along with one Jahru Prajapati has been convicted by the learned trial court vide judgment dated 21st December 2017 passed in Sessions Trial No.110/2016 by the court of learned Additional Sessions Judge-I, Ramgarh whereby the appellant along with Jahru Prajapati have been held guilty under Section 376D of the I.P.C. and awarded rigorous imprisonment for 20 years.
(2.) Learned counsel for the appellant has submitted that the victim has been examined as P.W.5. She has categorically stated in paragraph-9 of her cross-examination that she went before the Police herself. At that time she was conscious. Persons of Chopra More have given a written report to the Police. She was not knowing the accused persons prior to the occurrence nor the name was known to her, rather the persons who have written the report, have disclosed the name of the accused persons. Learned counsel for the appellant has submitted that considering such evidence of the informant victim herself in paragraph-9, the false implication of the appellant cannot be ruled out. Learned counsel for the appellant has drawn attention of this Court towards the medical evidence which was brought on record and marked as Ext.5 proved by P.W.8 which shows that no spermatozoa was found, no injury on private part and the cytology report which has been brought on record as Ext.5/1 also shows spermatozoa not found in the provided smear. Learned counsel for the appellant has submitted that appellant deserves to be enlarged on bail considering the evidence of the informant and other prosecution witnesses. P.W.2 Anuj Kumar, P.W.3 Sachin Kumar, P.W.4 Mahendra Ram have been declared hostile by the prosecution and the victim was found to be aged about 22 years. Learned counsel for the appellant has also submitted that as per the statement of the victim herself, she was interested in solemnizing marriage with Bhim Ram but because of difference in the caste her brother and sister-in-law and the community people were not ready. As such, considering such evidence of the victim who lived with Bhim Ram, the appellant cannot be convicted under Section 376D I.P.C. and as such I.A. No.6275/2019 preferred for suspension of sentence of the appellant may be allowed by granting bail to the appellant.
(3.) Learned counsel for the State Mrs. Priya Shreshtha, Additional Public Prosecutor has opposed the prayer on the ground that victim has identified both the accused persons in the dock. Apart from that, the injury report which has been brought on record as Ext.5 itself explains the reason for not finding spermatozoa in the vaginal swab and as such, appellant may not be enlarged on bail as there is direct allegation and other co-convict Jahru Prajapati has not pressed his interlocutory application which was dismissed as not pressed vide order dated 13.06.2018 passed in I.A. No.1192/2018 in Cr. Appeal (DB) No.218/2018. Heard learned counsel for the appellant, learned counsel for the State, perused the evidence of the victim (P.W.5), and the medical evidence (Ext.5 and 5/1).;