Manoj Kumar vs The State Of Jharkhand
2021 Latest Caselaw 2598 Jhar

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  Cr. Appeal (DB) No. 12 of 2021

             Manoj Kumar                                      ---           ---    Appellant
                                                Versus
             1. The State of Jharkhand
             2. Munni Devi                                    ---           ---    Respondent
                                                ---

              CORAM:         Hon'ble Mr. Justice Aparesh Kumar Singh
                          Hon'ble Mrs. Justice Anubha Rawat Choudhary
                                  Through:    Video Conferencing
                                                ---
              For the Appellant:        Mr. A.K. Kashyap, Sr. Advocate &
                                        Mr. Lalan Kr. Singh, Advocate
              For the Respondent:       Ms. Nahala Sharmin, A.P.P
              For the Informant:        Mr. Ashok Kr. Singh, Advocate
                                         ---
03 / 28.07.2021      Heard learned senior counsel for the Appellant Mr. A.K. Kashyap and

learned A.P.P Ms. Nehala Sharmin as also learned counsel for the Informant Mr. Ashok Kumar Singh on the prayer for suspension of sentence made by this Appellant through I.A. No. 3201/2021.

2. The sole Appellant stands convicted for the offence punishable under section 376 of the Indian Penal Code by the impugned judgment dated 19.10.2020 passed in Sessions Trial Case No. 169/2019 by the Court of learned Additional Sessions Judge-I, Hazaribag and has been sentenced to undergo R.I for ten years with a fine of Rs. 25,000/- and default sentence, by the impugned order of sentence dated 21.10.2020.

3. Learned senior counsel for the Appellant submits that as per the case of the prosecutrix, alleged occurrence took place on 12.12.2016 at 6.00 pm, but FIR was lodged on 25.12.2016 after her husband came back from Ahmedabad. This delay is fatal to the prosecution case. It is further submitted that the victim refused to undergo medical examination, as per the statement of the I.O (PW-9). The Investigating Officer has also stated that none of the witnesses examined under section 161 of the Cr. P.C stated that they have seen the accused fleeing away from the place of occurrence. It is further submitted that the victim submitted her petticoat on 02.02.2017 i.e. about two months of the occurrence. When it was examined at forensic science laboratory, though semen of male was found, but in the absence of any reference sample, identity of the individual could not be ascertained. It is submitted that PWs-1 & 2 have turned hostile, whereas PWs-3, 4 and 7 are mother-in-law, father-in-law and Gotni of the victim. PW-6 is the husband who came after twelve days of the occurrence, whereas PW-7 has also not stated that she saw the victim running away after the .2

occurrence, though she had heard shout. In the aforesaid circumstances, appellant who is in custody since 17.12.2018 i.e. about two years and seven months against the sentence of ten years awarded, may be enlarged on bail by suspending his sentence.

4. Learned AP.P and learned counsel for the Informant have strongly opposed the prayer. It is submitted that the case of the prosecutrix is supported by her statement made under section 164 of the Cr. P.C and also by other witnesses such as, PW-3 (mother-in-law), PW-4 (father-in-law) and PW-7 (Gotni) & PW-8 (independent witness) and also by PW-6 (her husband). Therefore, the appellant may not be enlarged on bail.

5. We have considered the submissions of learned counsel for the parties and taken note of the materials relied upon by them from the lower court records. Upon consideration of the materials on record, it appears that the FIR was instituted after thirteen days of the alleged occurrence and the victim refused to undergo medical examination, as per the statement of the Investigating Officer. Her petticoat submitted on 02.02.2017 for forensic examination though revealed presence of semen of male origin, but in the absence of reference sample, identify of individual could not be ascertained. In the aforesaid facts and circumstances, we are inclined to enlarge the appellant on bail by suspending his sentence during pendency of this appeal. Accordingly, Appellant Manoj Kumar shall be released on bail, during pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount each, to the satisfaction of learned Additional Sessions Judge-I, Hazaribag in Sessions Trial case No. 169/2019 with the condition that he and his bailors shall not change their address or mobile nos. without permission of the learned Trial Court. I.A. No. 3201/2021 stands disposed of.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Ranjeet/