ORDER

Heard learned counsel for the appellants, learned counsel for the informant and Mr. Binod Bihari Singh, learned Additional PP and Mr. Ajay Mishra, learned Additional PP for the State.

2. The records of these three appeals have been placed before this Court for consideration of their prayer for suspension of sentence and release of the appellants on bail during pendency of the appeal.

3. The records of the learned trial court have been received and the State has filed a written objection in terms of proviso to sub-section (1) of Section 389 Cr.P.C.

4. By the impugned judgment and order dated 07.06.2023 and 10.07.2023 passed by learned Additional Sessions Judge-VI-cum-Special Judge, Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO’), Vaishali at Hajipur in POCSO G.R. No. 25 of 2021 arising out of Vaishali P.S. Case No. 260 of 2021, the learned trial court has convicted these appellants for the offences under Sections 302/34, 201/34 and 366/34 of the Indian Penal Code (in short ‘IPC’) and they have been ordered to undergo life imprisonment for the offence under Section 302/34 IPC and to pay a fine of Rs.20,000/-, for the offence under Section 201/34, they have been awarded a sentence of rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, further for the offence under Section 366/34 IPC, the appellants have been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-.

5. For purpose of suspension of sentence and release of the appellants on bail, learned counsel for the appellants submits that the prosecution story suffers from some inherent inconsistencies and contradictions.

6. As per the prosecution story, on 28.06.2021 at about 12:00 A.M., the grand-daughters of the informant were sleeping in the room when the FIR named accused persons including these appellants along with three unknown persons took away his elder grand-daughter from her room forcibly. When the sister of the deceased tried to stop the accused persons, she was slapped and threatened. It is alleged that the accused persons kidnapped the deceased and committed gang rape on her and killed her. The informant alleges that his younger grand-daughter told about the incident next morning and the neighbours are also said to have seen a few persons on the last evening moving around the house of the informant.

7. Learned counsel for the appellants submits that the informant of this case is PW-9, he happens to be the grand-father of the deceased. It is his statement that he came to know about the occurrence on 29.06.2021 at around 04:00-04:30 A.M. (morning), after that he started searching his grand-daughter but her whereabouts were not found anywhere. In paragraph ‘34’ of his cross-examination, he has stated that in the three hours of his search, he had also gone to the Baswari at about 06:00 A.M. but nothing was found there. He has stated that he went to the police station at 08:00-08:30 A.M. and gave a written application but it would appear that in this case as per the formal FIR (Exhibit ‘8’), information was given in the police station on 29.06.2021 at 23:30 Hours and FIR was accordingly registered on the same day at 23:30 Hours. It is, thus, submitted that there is an inordinate delay in giving information about the occurrence to the police station and registration of FIR only because the informant was not sure about who are to be named as accused in the case.

8. Learned counsel further submits that the informant was also asked about the time when the inquest report was prepared by police but he did not remember that.

9. Learned counsel points out that in this case, admittedly the mother (PW-2) and brother (PW-3) of the deceased were not in the house on 28.06.2021 when the alleged occurrence took place. The father of the victim was working at Mumbai, therefore, he was also not present. PW-9 who is the informant of the case was sleeping at the bathan which was at a distance of about fifty meter f