Jharkhand High Court
Bholu Yadav @ Bholu Kumar vs The State Of Jharkhand on 11 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.157 of 2023
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Bholu Yadav @ Bholu Kumar, aged about 21 years, son of Kanhiya
Yadav, resident of Punjabi Dhowara, 6/7 Pit, PO & PS-Jorapokhar,
District-Dhanbad (Jharkhand) ……. … Appellant
Versus
The State of Jharkhand … … Respondent
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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Indrajit Sinha, Advocate
Mr. Akhouri Awinash Kumar, Advocate
For the Resp.-State : Mr. B.N. Ojha, A. P.P
——
Order No.05/Dated: 11th July, 2025
I.A. No. 7750 of 2025
1. The instant interlocutory application has been filed under Section 430(1)
of the BNSS, 2023 for keeping the sentence in abeyance in connection
with the judgment of conviction dated 01.12.2022 and order of sentence
dated 02.12.2022 passed by the learned Special Judge (POCSO) Act,
Dhanbad in connection with Spl. (POSCO) Case No.153 of 2021 arising
out of Jorapokhar PS Case No.196 of 2021, whereby and whereunder,
the appellant has been convicted under section 376 of the IPC and under
Section 6 of POCSO Act and sentenced to undergo RI for 25 years with
fine of Rs.5,000/- for the offence under Section 6 of POCSO Act and in
default of payment of fine, further directed to undergo additional
imprisonment of one month.
2. This is the second attempt made by the appellant for renewing his prayer
for suspension of sentence.
3. It has been contended on behalf of the applicant that it is a case where
the physical relationship was established with the consent of both the
parties.
4. The submission has been made that the victim is aged about 17 ½ years
at the time of occurrence. The argument has, therefore, advanced on
behalf of the appellant that the victim was well aware with all
consequences of establishing physical relationship and, hence, the
ingredient as referred in section 6 of POCSO Act or any other provision
thereof will not be attracted.
5. The learned counsel, based upon the aforesaid ground, has submitted that
it is a fit case for suspension of sentence.
6. While, on the other hand, Mr. B.N. Ojha, learned A.P.P. appearing for
the respondent-State of Jharkhand has vehemently opposed the prayer
for suspension of sentence.
7. It has been contended by the learned A.P.P. that earlier prayer for
suspension of sentence of the appellant has already been taken into
consideration by this Court and rejected the same vide order dated
29.03.2023 passed in I.A No.1272 of 2023 and again the appellant by
filing the present interlocutory application being I.A No.7750 of 2025
has renewed his prayer for suspension of sentence.
8. It has been contended that so far as the argument that the age of the
victim of 17 ½ years can be a ground for suspension of sentence is
concerned, the law does not permit. The submission has been made by
referring to the definition of “child” within the meaning of POCSO Act
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under section 2 (1) (d), “child” means any person below the age of
18 years.
9. It has further been contended that in the matter of POCSO there is no
meaning of any consent, reason being that the POCSO Act is the
Gender-Neutral Act and is meant only to take cases of child etc. The fact
of sexual assault as per the submission made by the learned counsel for
the applicant is admitted one, and, hence, it is not a fit case for
suspension of sentence.
10. We have heard the learned counsel for the parties and gone across the
findings recorded by the learned trial Court in the impugned judgment as
well as the testimony available in the lower Court records, as also the
materials exhibit as available therein.
11. The victim is child within the meaning of section 2(1)(d) of the POCSO
Act, 2012. She was subjected to sexual assault at the age of 17 years
approximately. However, the learned counsel appearing for the appellant
has made a submission that the victim is aged about 17 ½ years old at the
time of occurrence, but as it appears from the record that the age of the
victim as has been assessed by the learned trial Court was 17 years old at
the time of occurrence.
12. We have also gone through the memo of appeal and found that the issue
of age has not been challenged by the appellant and, as such, we have
gone by the age of the victim as assessed by the learned trial Court at
para-31 of the impugned judgment to be of the 17 years.
13. So far as the contention advanced on behalf of the appellant that the
victim was having 17 ½ years of the age at the time of occurrence is
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concerned, as we are sitting under the appellate jurisdiction and, as such,
we are duty bound to go by the statutory command.
14. This Court before considering the argument advanced on behalf of the
appellant is to refer herein that the consideration which has been made
by this Court while considering the prayer for suspension of sentence in
I.A No.1272 of 2023. It is evident therefrom that this Court has
considered the testimony of the victim, who has been examined as PW1,
who has fully supported the prosecution version.
15. The learned trial Court in its finding has also considered the compact
disc (C.D) in support of the prosecution version which contain the
recording of penetrative sexual assault, for ready reference the relevant
paragraph, i.e, para-32 of impugned judgment is being referred herein as:
“32. FIR of this case was instituted on the basis of typed
application of the victim girl on 23.09.2021. After FIR
her statement was recorded U/s 164 of Cr.P.C. This
statement is Ext. 2 of this case. In her statement before
Magistrate victim has stated that Bholu Yadav was a
friend and he was residing near her house and was
creating trouble to her. Earlier she used to call him or
chat him on Whatsapp. One day he took her in a hotel
and from there he took her to his house. She was under
impression that he was going to introduce her with his
family members. He has given her cold drink and after
consuming the cold drink she became semi-unconscious.
He has taken benefit of her unconsciousness and
committed bad work with her. He has prepared video of
that occurrence and said her that she has to come
whenever he calls her otherwise he will make the video
viral in her family and friend circle and he will kill her
father. By giving threatening he again called her in his
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house in the month of July and August and again
committed bad work and assaulted her. When she
refused he started giving threatening messages that he
will kill her father, make the video viral and assault over
her by acid. One day in the month of September 2021 he
arrived in her house and started threatening her. She
has told these facts to her family members and this case
was filed. In her evidence as PW. 1 this victim says that
she has friendship with Bholu Yadav, One day he took
her in a hotel. From there he took her to his quarter.
Bholu Yadav has given her cold drink and after
consuming the cold drink she became semi unconscious.
Bholu Yadav has taken benefit of her unconsciousness
and committed rape on her and prepared a video of that
incidence. On perusal of entire evidences on record I
find that material points of typed application of FIR that
accused Bholu Yadav took the victim girl to his quarter
and committed rape on her have been reiterated in her
statement U/s 164 of Cr.P.C. and again in her evidence
as P.W.1. Her parents have also given their evidences as
they heard from their daughter. Victim has filed
threatening messages which were sent from mobile
number of Bholu Yadav on her mobile on 22.09.2021. A
certificate U/s 65 B of Evidence Act has also been filed
which is in signature of the victim girl. Exhibit P-7
threatening messages from the end of accused Bholu
Yadav corroborate the evidence of victim girl. Video
recording of the penetrative sexual assault in a C.D. has
been filed in court which has been viewed by Learned
Counsel for defence which also corroborates the case of
victim girl against accused Bholu Yadav. From the side
of defence three witnesses have been examined on the
point that evidence of victim that she was taken to the
house of accused is false. This court has discussed this
point that evidence of these witnesses on this point was5
correct because case of victim itself was that she was
taken to Tata quarter no. 4 of accused Bholu Yadav and
not to his residential house. Evidence of accused Bholu
Yadav that victim was above 18 years and she has
celebrated her 18th birthday at Humpty Dumpty
restaurant Jharia is of no use because age is to be
determined in accordance with the provisions of section
94 of J.J. Act 2015 and not on the basis of
some oral evidence.”
16. The offence has been alleged against the appellant which has been
proved by the learned trial Court wherein the aforesaid part of the
contention raised on behalf of the appellant has been considered by the
learned trial Court and by referring the definition of “child” within the
meaning of section 2(1)(d) of the POCSO Act, the same has been
rejected.
17. This Court is not in agreement with such submission as has been
advanced on behalf of the appellant that at the time of occurrence, the
victim was aged about 17 years merely due to the preamble of the
POCSO Act, 2012 wherein it has been provided that, to deal with the
sexual offences of the child as per the meaning of child as defined under
section 2(1)(d) of the POCSO Act, 2012, the consent is also having no
meaning as has been held by Hon’ble Apex Court in the case of “X Vs.
Principal Secretary, Health and Family Welfare Department,
Government of NCT of Delhi and Another” reported in (2023) 9 SCC
433.
18. At this juncture, this Court is of the considered view that the meaning of
consent so far as the POCSO Act is concerned, is having no relevance.
The reason for such view is that if the consent would have any relevance,
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then the question is that for what purpose the POCSO Act has been
legislated when the penal provision as under Section 376 IPC was
already there when the POCSO Act, 2012 has been notified.
19. It needs to refer herein that it is more than a decade that the special Act
(POCSO Act) is in operation and it is pertinent to note that at the time of
introduction of the POCSO Act, “age of consent” for unmarried girl was
16 and it was presumed that any one below this age cannot lawfully
consent to sexual intercourse. The POCSO Act raised the “age of
consent” to 18 years and following the recommendations of Justice J.S.
Verma Committee, in the wake of a gruesome incident, which took place
in NCT, Delhi, Section 375 of IPC was also amended by the Criminal
Law (Amendment) Act, 2013.
20. As a consequence of the aforesaid provisions, an act of sexual
indulgence with a girl below 18 years, would attract the rigors of the
POCSO Act as well as the offence under Section 376 of IPC, and it is
being immaterial, whether it is a consensual relationship, as the law
presume that a girl below 18 years is not capable of consenting to sexual
intercourse and in such a scenario, even if a girl is below 18 years,
consents to a sexual intercourse, her consent must be ignored and the
other party Shall be guilty of committing an offence under the POCSO
Act.
21. The POCSO Act deals with number of situations with regard to sexual
offence against children. The relevant factor such as penetrated sexual
assault as well as aggravated penetrated sexual assault depends on nature
of sexual assault, therefore, the consent of minor, is immaterial.
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22. The Hon’ble Apex Court in the case of Satish Kumar Jayanti Lal
Dabgar v. State of Gujarat, (2015) 7 SCC 359 has categorically held
that if the consent of minor is treated as a mitigating circumstance, it
may lead to disastrous consequences. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under:
“16. Once we put the things in right perspective in the manner stated
above, we have to treat it as a case where the appellant has committed
rape of a minor girl which is regarded as a heinous crime. Such an
act of sexual assault has to be abhorred. If the consent of minor is
treated as a mitigating circumstance, it may lead to disastrous
consequences. This view of ours gets strengthened when we keep in
mind the letter and spirit behind the Protection of Children from
Sexual Offences Act, 2012.”
23. Further, in the case of X Vs. Principal Secretary” (supra), the Hon’ble
Apex Court has laid down that in the matter of POCSO Act, consent has
got no meaning. For ready reference the relevant paragraph is being
quoted as under:
“82. —– The Protection of Children from Sexual Offences Act, 2012
(“the Pocso Act“) is gender neutral and criminalises sexual activity
by those below the age of eighteen. Under the Pocso Act, factual
consent in a relationship between minors is immaterial. —–”
24. The Hon’ble Supreme Court in a recent case of “X (Minor) Vs. The
State of Jharkhand and Anr“. reported in 2022 SCC OnLine SC 2373
has dealt with the issue of consent and has considered the averment with
regard to love-affair and relevant paragraph No.6 is reproduced
hereinafter :-
“6. The High Court was manifestly in error in allowing the
application for bail. The reason that from the statement under Section
164 and the averments in the FIR, it appears that “there was a love
affair” between the appellant and the second respondent and that the
case was instituted on the refusal of the second respondent to marry
the appellant, is specious. Once, prima facie, it appears from the
material before the Court that the appellant was barely thirteen years
of age on the date when the alleged offence took place, both the
grounds, namely that “there was a love affair” between the appellant
and the second respondent as well as the alleged refusal to marry, are8
circumstances which will have no bearing on the grant of bail. Having
regard to the age of the prosecutrix and the nature and gravity of the
crime, no case for the grant of bail was established. The order of the
High Court granting bail has to be interfered with since the
circumstances which prevailed with the High Court are extraneous in
view of the age of the prosecutrix, having regard to the provisions of
Section 376 of IPC and Section 6 of POCSO.”
25. On the basis of discussion made hereinabove, this Court is of the view
that since we are dealing with the case of minor, as such consent has got
no meaning in the instant case as we are to go by the legal provision,
particularly, in a case of POCSO Act.
26. This Court since has already considered the aforesaid aspect of the
matter while considering the ground so agitated in I.A. No.1272 of 2023
vide order dated 29.03.2023 which has not been challenged before the
higher Forum and, as such, is of the view that the present application
needs no consideration in absence of any fresh ground and it is not a fit
case where the applicant is directed to be enlarged on bail by suspending
his sentence.
27. Accordingly, I.A. No. 7750 of 2025 stands dismissed.
28. It is made clear that any observation made hereinabove will not prejudice
the case on merit, since, the criminal appeal is lying pending before this
Court for its consideration.
29. In view thereof, I.A. No.7750 of 2025 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Sudhir
NAFR
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