Jharkhand High Court
Santosh Singh vs The State Of Jharkhand on 25 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 772 of 2019
Santosh Singh --- --- 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 : Mr. Kripa Shankar Nanda, Advocate
For the State : Mrs. Nehala Sharmin, A.P.P.
---
06/25.10.2021 Heard learned counsel for the parties on the prayer for
suspension of sentence of this appellant made through I.A. No.5401 of 2021.
2. Appellant along with one Budheshwar Mahto stood convicted
for the offences punishable under Section 376D of the I.P.C.; co-convict
Budheshwar Mahto also stood convicted under Section 4 of the POCSO Act
vide impugned judgment dated 29.05.2019 passed in (POCSO) G.R. Case
No.167/2017 by the court of learned District and Additional Sessions Judge-
III cum Special Judge, Gumla and have been sentenced to undergo rigorous
imprisonment for 20 years with a fine of Rs.10,000/- with a default sentence
under Section 376D of the I.P.C. vide impugned order of sentence dated
30.05.2019.
3. Learned counsel for the appellant submits that P.W.2 and 3 have
not supported the occurrence with whom the victim is stated to be sleeping on
the night of occurrence. P.W.1 another girl Sarsawti Oraon has also been
declared hostile. It is submitted that the Doctor who has examined the victim
on 17th February 2017 on the next day of the occurrence, did not find any
internal injury and hymen was raptured with no sperm found on vaginal
smear. The age was assessed as 16-17 years by the Medical Board. The
Doctor did not find any sign of recent rape as per his opinion contained in
injury report Ext.2. The F.S.L. report Ext.1 has found that the DNA of the
other convict Budheshwar Mahto matched on the stains found on the
undergarment (Janghia) of the victim. Though the allegation of gang rape has
been made implicating the present accused and two other juveniles but
surprisingly the F.S.L. report did not find matching DNA of this appellant. It
is submitted that the allegation of gang rape are not made out and as per the
statement of the co-convict Budheshwar under Section 313 Cr.P.C., the victim
had called him and both had physical relationship. Therefore, the appellant
has been falsely implicated in this case. He is in custody since the date of
occurrence i.e. about 4 years and 8 months and may be enlarged on bail by
suspending his sentence. He is married man and young children to maintain.
4. Learned A.P.P. has opposed the prayer. She submits that the
victim has specifically alleged the involvement of this appellant along with
two other accused who faced inquiry before the Juvenile Justice Board and
have indulged in the gang rape along with the other convict Budheshwar
Mahto. The Doctor has found abrasion on the right forearm in the injury
report of the victim. Therefore, he may not be enlarged on bail.
5. We have considered the submissions of learned counsel for the
parties and taken note of the materials on record relied upon by them from the
lower court records including the period of custody undergone by the
appellant.
6. On consideration of the submissions of the parties and the
materials on record, it appears that P.W.1, 2 and 3 have not supported the
occurrence, rather P.W.2 and 3 turned hostile who were stated to be sleeping
with the victim when the accused persons got opened the door and took her
out and committed rape. The F.S.L. Report shows matching DNA of convict
Budheshwar Mahto but no such matching DNA has been found of the present
appellant. The Doctor in his report Ext.2 has opined that he did not find any
sign of recent rape.
7. Having regard to the totality of the facts and circumstances
above, we are inclined to grant the privilege of suspension of sentence to the
appellant during pendency of the appeal. Appellant is directed to be released
on bail on furnishing bail bonds of Rs. 10,000/- (rupees ten thousand) with
two sureties of the like amount, each, to the satisfaction of learned District
and Additional Sessions Judge-III cum Special Judge, Gumla in connection
with (POCSO) G.R. Case No.167/2017 with the condition that the appellant as
well as his bailors shall not change their addresses and mobile numbers, if
any, without prior permission of the learned trial court and shall submit
Aadhar Cards at the time of his release. I.A. No.5401/2021 stands disposed of.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Shamim/
