Md. Irshad vs The State Of Jharkhand
2021 Latest Caselaw 4327 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Criminal Appeal (DB) No. 983 of 2018
     Md. Irshad                                             --- --- Appellant
                                   Versus
     The State of Jharkhand                                 --- --- Respondent
                                     .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant : M/s R.S. Mazumdar, Sr. Adv., Nishant Kr. Roy, Adv.

     For the State             : Mr. Md. Hatim, A.P.P.
     For the Informant         : Mr. Kamdeo Pandey, Advocate

05/22.11.2021    Heard learned Senior Counsel for the appellant Mr. R.S.

Mazumdar; Mr. Md. Hatim, learned A.P.P. and learned counsel for the informant Mr. Kamdeo Pandey on the prayer for suspension of sentence made by the appellant through I.A. No. 4860 of 2021.

Sole appellant stands convicted for the offence punishable under Section 376 of the I.P.C and Section 8 of the POCSO Act by the impugned judgment dated 20.07.2018 passed in Sessions Trial No. 171 of 2016 by the court of learned Special Judge, POCSO Act, Giridih and has been sentenced to undergo R.I. for 10 years with a fine of Rs.10,000/- and a default sentence u/s 376 I.P.C. and further sentenced to undergo R.I. for 5 years with a fine of Rs.5000/- and a default sentence for the offence punishable under Section 8 of POCSO Act by the impugned order of sentence dated 31.07.2018. All the sentences were ordered to run concurrently.

Learned Senior Counsel for the appellant submits that material witness P.W.4 and P.W.6 are interested witness but have not seen the occurrence except the informant. It is submitted that P.W.7 the prosecutrix disclosed the occurrence to her cousin sister and maternal grandmother aunti (nani) and when her mother returned then she disclosed about the occurrence to her. The F.I.R. was lodged on her written report, thereafter and statement under Section 164 Cr.P.C. was recorded thereafter. The uncle and aunty of the victim are residing in neighbourhood but she did not disclose it to them. Clothes have not been taken by the Police for forensic examination. She did not show any blood spot cloth to her cousin sister and grandmother aunti (nani). It is submitted that panchayati is said to have been convened but she did not visit panchayati. In her cross examination she has stated that she did not sustain any injury or scratch. After the incidence she was doing entire work in her house, though her entire body was aching. It is further submitted that the doctor P.W.10, on

radiological examination, found her age to be about 14 years and there was sign of recent rape. In cross examination however she has stated that no bleeding was found by her and no x-ray was done in her presence. Learned Senior Counsel for the appellant submits that appellant has remained in custody since March, 2016 i.e., 5 years and 8 months against the sentence of 10 years. Therefore, he may be enlarged on bail by suspending his sentence.

Learned A.P.P. has opposed the prayer and submits that the victim being minor aged about 14 years was sexually assaulted by the appellant aged about 35 years and medical evidence shows sign of recent rape. Therefore, appellants may not be enlarged on bail.

We have considered the submission of learned counsel for the parties and taken note of the materials relied upon by them from the lower court record including the period of custody undergone by the appellant. Having regard to the facts and circumstances noted above and the fact that appellant has undergone custody for about 5 years and 8 months by now, we are inclined to grant the privilege of suspension of sentence to the appellant.

Accordingly, appellant, named above, during the pendency of this appeal, shall be enlarged on bail, subject to deposit of fine amount in the court below and on furnishing bail bonds of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Special Judge, POCSO Act, Giridih in connection with Sessions Trial No. 171 of 2016 with the condition that appellant and his bailors shall not change their address or mobile number without permission of the learned Trial Court and that appellant as well as his bailors would also submit the Aadhar Card before the court below at the time of furnishing bail bonds.

I.A. No. 4860 of 2021 is allowed. Let the name of Mr. Md. Hatim, learned A.P.P. appear in the cause list in place of erstwhile counsel.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) A.Mohanty