Mirtunjay Dhal vs The State Of Jharkhand & Anr
2021 Latest Caselaw 4062 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Criminal Appeal (DB) No. 768 of 2019
     1.Mirtunjay Dhal
     2.Dhananjay Dhal                                       --- --- Appellants
                                   Versus
     The State of Jharkhand & anr.                          --- --- Respondents
                                   .......

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

For the Appellant : Mr. Abhay Kr. Chaturvedi, Advocate For the State : Mr. Rakesh Ranjan, A.P.P.

09/28.10.2021 Heard learned counsel for the appellants Mr. Abhay Kr.

Chaturvedi and Mr. Rakesh Ranjan, learned A.P.P. on the prayer for suspension of sentence made by the appellants through I.A. No. 8992 of 2019.

Both appellants have been convicted for the offence punishable under Section 376 (2) g of the I.P.C by the impugned judgment dated 22.07.2019 passed in Sessions Trial No. 49 of 2011 by the Court of learned District and Additional Sessions Judge-X cum FTC, East Singhbhum at Jamshedpur and have been sentenced to undergo R.I. for 10 years each with a fine of Rs.5000/- each and a default sentence by the impugned order of sentence dated 24.07.2019.

Learned counsel for the appellant submits that a per the allegation of the victim girl P.W.3, the incidence occurred at 5.00 p.m. on 07.11.2020 while she had gone for watering plant of vegetable near the river. At that time the accused persons tied a 'gamcha' over her mouth and dragged her towards the river in a lonely place and then the appellant no.1 committed forcible sexual intercourse while the appellant no.2 was keeping watch over the incidence. On raising cries, her father came and caught the appellant no.1, however both accused managed to flee away. It is submitted that the prosecution has examined only 4 witnesses i.e., P.W.1 father of the victim; P.W.2 mother of the victim; P.W.3 the victim herself and P.W.4 the doctor. The Investigating Officer of the case has not been examined. It is submitted that the P.W.4 doctor who has examined the victim on 12.11.2010 after 5 days of the incidence, did not find any sign of sexual intercourse. The victim was assessed to be 18 ½ years of age. It is submitted that the victim and the appellant no.1 have got married after the appellant no.1 was released from jail during trial. Therefore, the ingredients of rape against the appellant no.1 has not been substantiated

and therefore the charge against appellant no.2 also did not stands established. Both the convicts are in custody since the date of their conviction i.e., 22.07.2019. Since the victim has also got married to the appellant no.1, both the appellant deserve to be enlarged on bail by suspending their sentence.

Learned A.P.P. has opposed the prayer. He submits that the victim was subjected to forcible sexual intercourse by the appellant no.1 and she has categorically stated that after a panchayati with the accused persons, who belonged to the same village, the F.I.R was lodged on the third day, which has occasioned some delay. It is submitted that the victim was examined after 5 days of the occurrence, therefore no sign of forcible sexual intercourse was detected by the Medical Officer P.W.4, who has also given opinion to that effect. 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 appellants. Having regard to the facts and circumstances noted above and the evidence of doctor P.W.4, who has assessed the age of the victim to be 18 ½ years and that he had found no sign of forcible sexual intercourse on examining her, we are inclined to grant the privilege of suspension of sentence to the appellants.

Accordingly, both appellants, named above, during the pendency of this appeal, shall be enlarged on bail on furnishing bail bonds of Rs. 10,000/- (Rupees Ten Thousand) each with two sureties of the like amount each, to the satisfaction of learned District and Additional Sessions Judge-X cum FTC, East Singhbhum at Jamshedpur in connection with Sessions Trial No. 49 of 2011 with the condition that they and their bailors shall not change their address or mobile number without permission of the learned Trial Court and that appellants as well as their bailors would also submit the Aadhar Card before the court below at the time of furnishing bail bonds.

I.A. No. 8992 of 2019 is allowed. I.A. No. 5086 of 2021 also stands disposed of.

The Secretary, Jharkhand High Court Legal Services Committee shall inquire whether the respondent no.2 victim, who was noticed earlier is in need of legal aid. Such inquiry may be made through the concerned D.L.S.A., East Singhbhum at Jamshedpur. In case she makes an application for legal aid the same be processed in accordance with law. Let the details of the respondent no.2, Sessions Trial number and designation of the Court as also the present appeal number be incorporated in the communication to the Secretary, Jharkhand High Court Legal Services Committee by the Registry for undertaking the inquiry.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) A.Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 1236 of 2019

1.Munna Thakur

2.Shiv Prasad Thakur @ Sheo Prasad Thakur --- --- Appellants Versus The State of Jharkhand --- --- Respondent .......

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

For the Appellant : Mrs. Jasvinder Mazumdar, Advocate For the State : Mr. Abhay Kr. Tiwari, A.P.P.

06/28.10.2021 Heard learned counsel for the appellants Mrs. Jasvinder Mazumdar and Mr. Abhay Kr. Tiwari, learned A.P.P. on the prayer for suspension of sentence made by the appellant-1 Munna Thakur (husband) through I.A. No. 5015 of 2021.

Both the appellants stand convicted for the offences punishable under sections 304-B/34 of the Indian Penal Code by the impugned judgment dated 13.09.2018 passed in Sessions Trial No. 276 of 2016 by the Court of learned Additional Sessions Judge-IX, Palamau and have been sentenced to undergo rigorous imprisonment for ten years, by impugned order of sentence dated 19.09.2018.

Learned counsel for the appellant no.1 husband submits that earlier the prayer for suspension of sentence of the appellant no.2 father-in-law was allowed vide order dated 14.07.2021 taking note of the fact that as per the statement of the informant P.W.4 he had paid Rs.20,000/- to the appellant on deposit of the motorcycle as surety. It has also been taken note of that the post mortem report suggested suicidal death caused by asphyxia due to hanging and there was no external ante mortem injury on the body of the deceased. Further the appellant no.2 had remained in custody for 5 months less than 6 years i.e., more than half of the sentence of 10 years awarded. The appellant no.1 husband is in custody since 03.12.2015 and by now has completed almost 5 years and 10 months of custody. It is submitted that on similar grounds as has been taken note of in the order dated 14.07.2021 passed in the case of appellant no.2, the present appellant no.1 also deserves to be enlarged on bail by suspending his sentence.

Learned A.P.P. has opposed the prayer. He submits that the death occurred within 6 months of the marriage in an unnatural circumstances in the matrimonial house regarding which, appellant has failed to give any cogent explanation to discharge his burden in terms of Section 106

read with Section 113-A of the Evidence Act. It is submitted that prosecution witnesses such as P.W.1 to P.W.4 are consistent on the point of demand of dowry and complain of torture upon the deceased. As such, prayer for bail may be rejected.

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 no.1. On consideration of the materials on record, it appears from the statement of the informant P.W.4 that he had paid Rs.20,000/- to the appellant on deposit of the motorcycle as surety and that there was no external ante mortem injury on the body of the deceased as per the post mortem report and also that appellant no.1 has remained in custody for almost 5 years 10 months by now. Taking into account the above facts and circumstances, we are inclined to grant the privilege of suspension of sentence to the appellant no.1.

Accordingly, appellant no.1, named above, during the pendency of this appeal, shall be enlarged 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 Additional Sessions Judge-IX, Palamau in connection with Sessions Trial No. 276 of 2016 with the condition that he and his bailors shall not change address or mobile number without permission of the learned Trial Court and that appellant no.1 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. 5015 of 2021 is allowed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) A.Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 169 of 2020 Upendra Pan --- --- 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. Amit Kumar Das, Advocate For the State : Mr. Azeemuddin, A.P.P.

05/28.10.2021 Heard learned counsel for the appellant and learned A.P.P. on the prayer for suspension of sentence made by the appellant through I.A. No. 5681 of 2021.

The sole appellant aged 65 years stands convicted for the offence punishable under Sections 376(3), 506 of the I.P.C. and Section 6 of the POCSO Act by the impugned judgment dated 28.11.2019 passed in Spl.(POCSO) Case No. 22 of 2019 by the court of learned Additional Sessions Judge-I cum Special Judge under POCSO Act, West Singhbhum at Chaibasa and has been sentenced to undergo R.I. for 22 years with a fine of Rs.40,000/- and a default sentence u/s 376(3) I.P.C.; R.I. for 2 years u/s 506 I.P.C. by the impugned order of sentence dated 29.11.2019. No separate sentence has been awarded under the POCSO Act in view of Section 42 of the POCSO Act.

Learned counsel for the appellant submits that the Investigating Officer, P.W.8 has in his deposition stated that he has not been able to obtain the DNA of the child born out of the pregnancy, alleged to have been caused due to rape committed by the appellant on the victim, to establish the paternity of the appellant. It is submitted that the case was lodged by the victim after 5 months of the incidence. The doctor P.W.5, who examined the victim on 06.06.2019, did not find any mark of violence over the body and private part of the victim. The age of the victim was also not assessed due to pregnancy. The occurrence has not been seen by any other witness other than the prosecutrix P.W.1. Other witnesses such as P.W.2 and P.W.3, father and mother; P.W.4 and P.W.7 are hearsay witness. Therefore, appellant, who is in custody since June 2019, may be enlarged on bail by suspending his sentence.

Learned A.P.P. has opposed the prayer.

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 totality of facts and circumstances noted above available on the basis of materials on record and that the victim aged about 15-16 years as per the visual assessment of the victim by the doctor P.W.5 was carrying pregnancy of 24 weeks pursuant to the forcible sexual intercourse by the appellant, we are not inclined to enlarge the appellant on bail. Accordingly, I.A. No. 5681 of 2021 is rejected.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) A.Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 30 of 2021 Jaya Kumari Singh --- --- Appellant Versus Shrey Kumar @ Shrya Kumar --- --- Respondent .......

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

For the Appellant : Mr. Lukesh Kumar, Advocate For the Respondent : Mr. Shankar Singh, Advocate

08/28.10.2021 Reply to I.A. No. 5756 of 2021 has been filed by the respondent on 25.10.2021.

Let it be placed on record. As prayed for by learned counsel for the parties, list this case after reopening of the Diwali Vacation.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) A.Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 751 of 2018 Ram Snehi Yadav @ Snehi Yadav --- --- 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. R.S. Mazumdar, Sr. Adv., Santosh Kr. Jha, Adv.

        For the State             : Mr. Tarun Kumar, A.P.P.

06/28.10.2021        Learned Senior Counsel for the appellant does not press the

prayer for suspension of sentence of the appellant made through I.A. No. 11689 of 2019, at this stage.

Learned A.P.P. does not oppose the prayer.

In view of the request made by learned Senior Counsel for the appellant, I.A. No. 11689 of 2019 is dismissed as not pressed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.)

A.Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 376 of 2019 Nikunj Mandal --- --- 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. Abhay Kr. Chaturvedi, Advocate For the State : Mr. Manoj Kr. Mishra, A.P.P.

07/28.10.2021 Learned counsel for the appellant does not press the prayer for suspension of sentence of the appellant made through I.A. No. 4941 of 2021, at this stage.

Learned A.P.P. does not oppose the prayer.

In view of the request made by learned counsel for the appellant, I.A. No. 4941 of 2021 is dismissed as not pressed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.)

A.Mohanty