Jharkhand High Court
Sheikh Abdul @ Md. Jawed vs The State Of Jharkhand on 27 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr.Appeal (DB) No. 1210 of 2016
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Sheikh Abdul @ Md. Jawed .... ... Appellant
Versus
The State of Jharkhand .... .... Respondent
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Raja Ravi Shekhar Singh, Amicus
For the State : Mr. Saket Kumar, APP
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th
Order No.17/ Dated: 27 July 2022
IA No. 2120 of 2021
The present Interlocutory Application has been filed on behalf
of the appellant for suspension of sentence during pendency of the instant
criminal appeal.
2. The appellant has been convicted and sentenced to RI for life
and a fine of Rs. 5,000/- for the offence under section 376 of the Indian Penal
Code; RI for five years and a fine of Rs. 5,000/- for the offence under section
8 of the POCSO Act, both with a default stipulation to undergo further SI for
six months for each default, and; RI for two years and a fine of Rs. 3000/- for
the offence under section 3 (i)(xi) of the Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act with a default stipulation to undergo
further SI for four months.
3. The appellant is in custody since 26th May 2015.
4. A First Informant Report (Mehrama PS Case No. 228 of 2015)
was drawn on 25th May 2015 under section 376(2) of the Indian Penal Code,
section 4 of the POCSO Act and section 3(xii) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, on the basis of written report
of victim girl (hereinafter referred to as 'X') aged about 14 years.
5. In Special (P) Case No. 08 of 2015, to prove the charges against
the appellant, the prosecution examined nine witnesses besides one Court
witness, namely, Santlal Hansda who acted as a translator/interpreter for
Santhali language. Several documentary evidences were also produced by the
prosecution during the trial.
6. Dr. Usha Singh who was examined as PW8 recorded the
following observations on clinical examination of 'X' :
"No external injury on any part of body.
Internal Examination:
I. Vagina admits one finger.
II. Uterus normal in size.
III. No any tear of hymen membrane
Microscopical examination of vaginal swap- Spermatozoa
not found
Epi. Cells-(++)
Age by board:- On the basis of physical, dental and radiological
examination age of Sachina Soren is 16 years.
7. The learned 1st District and Additional Sessions Judge -cum-
Special Judge, Godda held that evidence of the victim girl who was
examined as PW2 was supported by other prosecution witnesses including
PW1, PW3, PW5 and PW6 who were accompanying PW2 when she was
apprehended and sexually assaulted by the appellant.
8. Accordingly, the appellant was convicted and sentenced as
noted above.
9. Mr. Raja Ravi Shekhar Singh, the learned Amicus would submit
that: (i) medical evidence does not conclusively establish sexual violence
upon 'X' (ii) 'X' was quite healthy and allegation of sexual assault upon her
and that too in presence of PW3 creates serious doubt on the prosecution
story (iii) 'X' did not prove the statement under section 164 of the Code of
Criminal Procedure and seizure list, and (iv) her complaint which was
written in Hindi does not inspire confidence as she was Santhali speaking
girl and her evidence was taken with the help of an interpreter who was
examined as CW1.
10. Mr. Saket Kumar, the learned APP would submit that on
conviction of the appellant in Special(P) Case No. 08 of 2015 the
presumption of innocence would be substantially diluted and, therefore, only
on the ground of custody the sentences awarded to the appellant should not
be suspended.
11. Mr. Raja Ravi Shekhar Singh, the learned Amicus would refer to
the judgment in "Hussain & Anr. v. Union of India" (2017) 5 SCC 702 to
submit that speedy conclusion of criminal trials and appeals is part of
reasonable, fair and just procedure as guaranteed under Article 21 of the
Constitution of India.
12. In "Kashmira Singh v. State of Punjab" (1977) 4 SCC 291 the
Hon'ble Supreme Court held as under:
"2. ......Now, the practice in this Court as also in many of the High
Courts has been not to release on bail a person who has been
sentenced to life imprisonment for an offence under Section 302 of
the Penal Code, 1860. The question is whether this practice should
be departed from and if so, in what circumstances. It is obvious
that no practice howsoever sanctified by usage and hallowed by
time can be allowed to prevail if it operates to cause injustice.
Every practice of the Court must find its ultimate justification in
the interest of justice. The practice not to release on bail a person
who has been sentenced to life imprisonment was evolved in the
High Courts and in this Court on the basis that once a person has
been found guilty and sentenced to life imprisonment, he should not
be let loose, so long as his conviction and sentence are not set
aside, but the underlying postulate of this practice was that the
appeal of such person would be disposed of within a measurable
distance of time, so that if he is ultimately found to be innocent, he
would not have to remain in jail for an unduly long period. The
rationale of this practice can have no application where the Court
is not in a position to dispose of the appeal for five or six years. It
would indeed be a travesty of justice to keep a person in jail for a
period of five or six years for an offence which is ultimately found
not to have been committed by him. Can the Court ever compensate
him for his incarceration which is found to be unjustified? Would it
be just at all for the Court to tell a person: "We have admitted your
appeal because we think you have a prima facie case, but
unfortunately we have no time to hear your appeal for quite a few
years and, therefore, until we hear your appeal, you must remain in
jail, even though you may be innocent?" What confidence would
such administration of justice inspire in the mind of the public? It
may quite conceivably happen, and it has in fact happened in a few
cases in this Court, that a person may serve out his full term of
imprisonment before his appeal is taken up for hearing. Would a
Judge not be overwhelmed with a feeling of contrition while
acquitting such a person after hearing the appeal? Would it not be
an affront to his sense of justice? Of what avail would the acquittal
be to such a person who has already served out his term of
imprisonment or at any rate a major part of it? It is, therefore,
absolutely essential that the practice which this Court has been
following in the past must be reconsidered and so long as this
Court is not in a position to hear the appeal of an accused within a
reasonable period of time, the Court should ordinarily, unless there
are cogent grounds for acting otherwise, release the accused on
bail in cases where special leave has been granted to the accused
to appeal against his conviction and sentence."
13. Since there is no reasonable possibility of this criminal appeal to
be taken up in near future and the appellant has already served about nine
years, with remission, we are inclined to suspend the sentence awarded to the
appellant in Special (P) Case No. 08 of 2015.
14. Accordingly, the appellant, above-named, shall be released on
bail on furnishing bail bond of Rs. 10,000/- (rupees ten thousand only) with
two sureties of the like amount each to the satisfaction of the learned
1st District and Additional Sessions Judge -cum- Special Judge, Godda in
connection with Special (P) Case No. 08 of 2015 with conditions that he
shall provide his mobile number and copy of the Aadhaar card disclosing his
present address of residence and he shall also remain present personally or
through his lawyer/Amicus when this criminal appeal is taken up for hearing.
15. IA No. 2120 of 2021 is allowed.
16. The learned Amicus shall be paid fee on submission of bill(s).
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
SB/Nibha
