Upendra Pan vs The State Of Jharkhand
2021 Latest Caselaw 4071 Jhar

           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