ORAL ORDER

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

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

2. Earlier, this Court had issued notice to the informant-respondent no.2, who has appeared through vakalatnama and the name of the learned Advocate is printed in the cause list, but no one has entered appearance.

3. The State has also filed written objection which is on record.

4. The appellant in this case is seeking suspension of his sentence and release on bail during pendency of the appeal.

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

5. The appellant has been convicted vide judgment dated 10.09.2024 and sentenced vide order dated 24.09.2024 by learned ADJ-VI-cum-Special Judge (POCSO), Saharsa, in Special (POCSO) Case No.25 of 2022 vide CIS No.1426 of 2022 (arising out of Saur Bazar P.S. Case No.131 of 2022), for the offences under Sections 363, 366A and 34 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’) and Sections 4 and 6 of Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’). He has been directed to undergo simple imprisonment for 5 years with a fine of Rs.25,000/- for the offence punishable under Section 366A of IPC. The appellant has further been directed to undergo rigorous imprisonment for 20 years with a fine of Rs.25,000/- under Section 4 of the POCSO Act and in default of payment of the same, he has been directed to further undergo simple imprisonment for three months. Both the sentences are to run concurrently.

6. The prosecution case is based on a written information submitted by the father of the victim girl, who has alleged that the appellant had taken away the victim girl, aged about 12 years, with an intention to marry her. About the appellant, he disclosed that he happened to be a teacher in a school and for the last three years, he was giving tuition to the victim and her brother at home.

7. It appears that the police was informed about the occurrence on 13.03.2022 and the F.I.R was registered on the same day. In course of investigation, police is said to have found the victim girl at Madnama More at about 10:30 p.m. when she was found alone.

8. The victim was, thereafter, taken for medical examination to the Sadar Hospital where she was examined by Dr. Neha (PW-8), who found that there was no scratch mark, no external injury was seen on the body, external genitalia was found normal, there was no bleeding, no injury on vulva, vagina and external genitalia, hymen torn, but in her opinion, sexual assault could not be confirmed. She has stated about the age of the victim being below 17 years but in cross-examination, she has stated that accurate test cannot be confirmed.

9. Learned counsel for the appellant submits that after her recovery, the victim girl was examined by the Investigating Officer (PW-7). PW-7 has stated that the victim had not disclosed the complete description of the place of occurrence, no place or direction was disclosed by the victim. The Investigating Officer could not find the place which was disclosed by the victim in her statement recorded under Section 164 Cr.P.C. The I.O. has stated in his deposition that in her 164 Cr.P.C. statement, the victim has stated that the appellant had not committed any indecent act (chher-chhar). Referring to her 164 Cr.P.C. statement, which is available on the record, learned counsel for the appellant submits that the victim was examined by the learned Magistrate on 16.03.2012. She has stated that she was making her statement voluntarily and was not under any kind of pressure. In her 164 Cr.P.C. statement, she has stated that when she was going to her house after school test, with her brother, the appellant asked her to come with him and he would drop her at her house. She believed and sat on the bike, b