ORAL ORDER

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

1. Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State.

2. Earlier, we had issued notice to the informant-respondent no.2, who has been served, but she has chosen not to enter appearance in this case.

3. The two appellants in this case are seeking suspension of their sentence and release on bail during pendency of the appeal.

4. The appellants have been convicted vide judgment dated 11.12.2024 in Special (POCSO) Case No.101 of 2023 (arising out of Maranchi P.S. Case No.45 of 2023), for the offences under Section 376D of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’) and Section 6 of POCSO Act. They have been directed to undergo rigorous imprisonment for 20 years with a fine of Rs.15,000/- for the offence punishable under Section 6 of the POCSO Act and in default of payment of the same, he has been directed to further undergo simple imprisonment for one year.

5. The prosecution case is based on the fardbeyan of the victim (X), aged about 17 years at the time of occurrence. The allegation against these two appellants is that when the victim girl had gone outside her house on 03.04.2023 at about 9:00 p.m. (night) to ease out, these two appellants along with others gagged her mouth and tied whereafter she was brought near the Chimny, Bhata of the village and all the four started indecent act with her. She alleged that accused Vikash Kumar (not before this Court) had forcibly committed rape on her whereas three accused persons including these appellants holding her hands and legs. Thereafter, she was going back to her house and say, started feeling darkness in front of her eyes. At this stage, she took out her mobile phone and gave a call to her house and became unconscious whereafter she found herself in the Referral Hospital, Barahiya.

6. Learned counsel for the appellants submits that the fardbeyan of the victim is said to have been recorded on 04.04.2023 and was forwarded to the police station where it was registered as Maranchi P.S. Case No. 45 of 2023.

7. At the outset, learned counsel submits that so far as these two appellants are concerned, there is no allegation at all alleging that they had involved in commission of rape upon victim. The medical evidence, which has been brought on record through doctor P.W.4, completely rules out any sexual assault on the victim. The general examination of the victim would show no injury over her whole body or her private part. The radio- logical report shows that there is evidence of epiphysical fusion, hence her age has been assessed to be 18 years or above. The medical opinion is that there is no sign of recent sexual intercourse, opinion regarding rape could not be ascertained and her age is likely to be 18 years or above. The Medical report is Exhibit-P/5 brought by the P.W.4. There was also no mark of violence and struggle found over the person of the victim or her private part. Thus, it is submitted that the prosecution story as regards rape itself is not corroborated from the medical examination. It is completely ruled out by the medical evidence.

8. It is further contended that victim has been assessed minor aged below 18 years on the basis of matriculation certificate, but a bare perusal of the evidence of P.W.1, it would appear that she has admitted in paragraph nos. 37, 38 and 39 of her deposition that she had appeared in Class-X examination from the school where she was admitted in Class-IX and she categorically admits that at the time of taking her admission in Class-IX, her date of birth was changed. She has further stated that the School Leaving Certificate, which was given by the school in Class-VI, cannot be produced. It is, thus, submitted that even though her matriculation certificate is within the scheme of Section 94 of the Juvenile Justice (Care and Protection of Child) Act is an admissible piece of evidentiary value, the learned trial Court ha