The court confirmed that the absence of conclusive evidence affects the conviction while providing bail pending appeal regarding serious charges.

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH and HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA ORAL ORDER (Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

8 01-12-2025 Heard the learned counsel for the appellant, Ms. Priya as also the learned APP for the State, Ms. Shashibala Verma and the learned Amicus Curiae, Ms. Aditi Sharma.

2. The present appeal has been preferred against the judgment of conviction and the order of sentence dated 29.10.2024 and 30.10.2024 respectively passed by the learned Additional Sessions Judge-VI-cum-Special Judge POCSO Act, Patna in Special POCSO Case No. 7 of 2018 (arising out of Pandarak P.S. Case No. 68 of 2017) whereby and whereunder the appellant has been convicted under Section 376 D of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’) and Section 6 of the Protection of Children from Sexual Offences Act , 2012 (hereinafter referred to as the ‘POCSO Act, 2012’) and he has been sentenced to undergo rigorous imprisonment for 20 years under Section 376 D of the I.P.C. with fine of Rs. 25,000/- and in the event of non-deposit of the same, the appellant had been further directed to undergo one-year simple imprisonment. No separate sentence has been passed under of the POCSO Act, 2012.

3. The records of this appeal have been placed before this Court to consider the prayer of the appellant for suspension of his sentence and release on bail during the pendency of the appeal.

4. The short facts of the case as per the written report of the mother of the victim girl i.e. PW-2 is that her daughter aged about 18 years (there appears to be manipulation) was returning back on the previous day i.e. 24.07.2017 at about 6:00 p.m. from her field after sowing seeds and on the way near Kherua Khanda, the appellant and one another had taken the daughter of the informant into the adjacent field and committed wrong with her. On the basis of the said written report of the mother of the victim girl, Pandarak P.S. Case No. 68 of 2017 was registered on 25.07.2017 under Section 376/34 of the I.P.C.

against the appellant and one another person.

5. The learned counsel for the appellant has submitted that a bare perusal of the evidence of PW-3 i.e. Dr. Priyanka Kumari would show that firstly she, upon examining the victim has found her age to be approximately 18 years and secondly, in her opinion, rape has not been ascertained apart from she having not found any mark of injury anywhere on the body of the victim girl. It is further submitted by referring to the deposition of PW-6 i.e. the Headmaster/Principal, who was at the relevant time posted as In-charge Headmaster, Primary School, Bhuapur that he, in his cross-examination has stated that no proof or birth certificate was produced in support of the date of birth of the victim at the time of admission in the school concerned and her age was mentioned orally, on the basis of which the same was entered in the school records. Thus, it is submitted that there is no conclusive proof regarding the victim being minor as on the date of occurrence. It is next submitted that PW-7 who is working as Director, Forensic Science Laboratory, Patna has in his evidence though proved the F.S.L report, however a bare perusal of the F.S.L. report would show that though blood stains, present on the undergarment of the victim girl, have been found to be human blood, however the grouping has not been determined and instead the result of the test for blood grouping has been stated to be inconclusive. It is thus submitted by the learned counsel for the appellant that the F.S.L. report would show that neither semen was found on the undergarment of the victim girl nor there is any proof to show that the blood found thereon is that of the appellant. Thus, it is submitted that the learned