The Patna High Court has rejected an interlocutory application under Section 389(1) CrPC for suspension of sentence moved by ex- MLA Rajballabh Yadav, who is serving life sentence in the rape case of a minor. The application was moved during the pendency of appeal against the conviction order.
A division bench of Justice Ashwani Kumar Singh and Justice Harish Kumar ordered,
"Regard being had to the gravity of the offence, the role played by the appellant, an ex-MLA, in the commission of the offence upon a minor girl and the person against whom there is a lessor charge has been refused bail by this Court, we are not inclined to grant bail at this stage."
The trial court has not awarded any separate sentence for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act.
The prosecution case is based on the written report submitted by the victim, who was examined during trial. In her written report, she has stated that she along with her two elder sisters and a younger brother was residing in the house of Bisundeo Kumar on rent at Garhpar (Professor Colony). Sulekha Devi was also residing in the same mohalla with whom she has good relation.
On 06.02.2016, at 4 P.M., said Sulekha Devi requested her to join a birthday party near Bharao Chowk. She took permission from her elder sister and went along with Sulekha Devi and her daughter Chhoti. They took her firstly at Ramchandrapur Bus Stand and from there they took bus of Bhakhtiarpur. When she inquired that where they were going, Sulekha Devi told her that she would take her mother also for participating in the birthday party.
Thereafter, they reached at Bakhtiarpur where a Bolero vehicle was parked from before. After staying there for sometime, she along with Sulekha Devi and her mother sat in the Bolero vehicle. They reached at Giryak in between 11:00 and 11.30 P.M. As it was pitch dark, she could not read the name of the occupant of the building in which she was taken. It was a four storied building at Giriyak. After sometime, a person aged about 40-50 years came there and started taking wine along with Sulekha Devi. She was also offered to drink, but she refused. There were 4-5 persons guarding the said house. After drinking, Sulekha Devi unclothed her, pushed her on bed, caught her hand, inserted cloth in her mouth and the man, who was taking wine raped her. Thereafter, Sulekha Devi took her to another room and in the morning, she dropped her at her house.
She stated that she saw Sulekha Devi receiving Rs.30,000/- from the man, who had committed rape upon her.
After the victim came back to her house, she disclosed about the incident to her elder sister who informed her father. After coming to know about the occurrence, her father came and took her to the police station where she submitted her written report.
She claimed that she would identify the person who committed rape upon her and the persons who were guarding the house.
On the basis of the aforesaid written report, Nalanda Mahila Police Station drew up a formal first information report and registered the case.
"In medical examination, no injury on the private part of the prosecutrix was detected and the swab of the private part of the prosecutrix was taken and examined in which spermatozoa was not found", it was further submitted.
He contended that the prosecutrix was medically examined within 60 hours from the alleged occurrence by the doctor and the doctor did not find any injury either on external part or private part of the body of the prosecutrix rather it was found that she was habitual to sexual intercourse.
According to him, the medical evidence completely rules out the prosecution case. He contended that the witnesses examined during trial are not consistent.
Advocate Sanjeev Sehgal, appearing for the appellant, lastly contended that by now the appellant has remained in custody for over six years and the appeal is not likely to be taken up for hearing in near future.
Mr. Shyameshwar Dayal, Senior advocate, appearing for the State vehemently opposed the prayer for bail made on behalf of the appellant.
Dayal submitted that during trial, the appellant was granted bail by this Court, which was set aside by the Supreme Court.
He contended that the appellant is an influential person. At the relevant time, he was a member of the Legislative Assembly of the area in question. He submitted that the witnesses examined during trial have fully supported the prosecution case. He contended that co-convict Sandeep Suman @ Pushpanjay had moved before this Court for suspension of sentence and grant of bail earlier. His prayer for suspension of sentence and grant of bail was rejected by this Court vide order dated 13.07.2021.
Advocate Dayal submitted that Sandeep Suman @ Pushpanjay was an accomplice of the appellant, who is the main culprit.
It was also argued that the alleged victim, a minor, has fully supported her case during trial. The oral testimony of prosecution witnesses and the electronic evidence brought on record would clearly suggest that Sulekha Devi brought the victim to the house of the appellant where after consuming liquor he raped her.
He further submitted that it is well settled that in case the medical evidence is contrary to oral testimony of the victim in a case of rape the oral testimony would prevail. Moreover, in the present case, the rape was committed upon the victim on 06.02.2016 and her medical examination was done by the Medical Board on 17.02.2016. Furthermore, Dr. Shailendra Kumar stated in his testimony that the victim was aged between 16 and 17 and rape could not be ruled out.
Considering the gravity of the offence, the court ordered that the role played by the appellant, an ex-MLA, in the commission of the offence upon a minor girl and the person against whom there is a lessor charge has been refused bail by this Court, it is not inclined to grant bail at this stage. Accordingly, the prayer for bail of the appellant was rejected.
Citation: 2022 LiveLaw (Pat) 17