Rakesh Yadav vs The State Of Jharkhand
2023 Latest Caselaw 2548 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (SJ) No.325 of 2023

Rakesh Yadav                                 .....   ... Appellant
                           Versus
The State of Jharkhand                      .... .... Respondent
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Md. Sajid Yunus, Advocate For the State : Mr. Nawin Kumar Singh, A.P.P.

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02/2nd August, 2023 I.A. No.6678 of 2023

1. The instant interlocutory application has been filed on behalf of

the appellant under Section 389(1) Cr.P.C. for suspension of

sentence in connection with judgment of conviction dated 31st

March, 2023 and order of sentence dated 12th April, 2023 passed

by the learned Special Judge, POCSO Act, Garhwa in POCSO Case

No.45 of 2022, whereby and whereunder, the appellant has been

convicted for the offence under Section 354, 354D, 341, 506 of

the I.P.C. and Section 12 of the POCSO Act and has been

sentenced accordingly.

2. Learned counsel for the appellant has submitted that as per

prosecution case, the F.I.R. of this case was lodged by the father

of the victim with these allegations that his 13 years old daughter

was studying in Class-IX and while she was on the way to her

school, the accused Rakesh Yadav along with his other friends had

thrown a paper over her mentioning his mobile number to have

talk with him. On 26th February, 2022, the accused Rakesh Yadav

along with his associates came and asked the victim why she had

not talked with him and threatened to shoot her. No one came to

rescue, thereafter the prosecutrix went to the school and at about

10:00 hours, the accused came inside the school and he put

vermilion in her maang while she was in her classroom. The

prosecutrix also went to the school office and narrated in regard

to the occurrence to the Headmaster and thereafter apprised her

father, who lodged the F.I.R.

3. Learned counsel for the appellant has submitted that the

impugned order passed by the learned trial court is not based on

proper appreciation of the evidence which are available on record.

It is further submitted that on behalf of the prosecution,

altogether 11 witnesses were examined.

P.W.-2 is the prosecutrix and she in her statement corroborated

the prosecution story.

P.W.-3 is the friend of prosecutrix and this witness only

corroborated the prosecution story to this extent that while she

was on way to her school, accused - Rakesh Yadav used to molest

her but she stated in her cross-examination that she was not

familiar with Rakesh Yadav prior to the occurrence. She had only

seen him near and around the school but she had not seen the

commission of molestation being done by the accused and

throwing of vermilion on the maang of prosecutrix.

P.W.-4 Vijay Kumar Singh is the Headmaster of the school. This

witness has stated that the prosecutrix had come to his office on

the date of occurrence and he had seen vermilion on her head. He

further stated that other students have stated him in regard to the

occurrence which took place in the classroom. The class was not

going on at that time and the teacher was not present in the

classroom. He also stated that no teacher of his school had seen

putting vermilion on her head.

P.W.-5 Md. Misbahul Hasan Ansari in his statement says that

when he entered in the classroom, the boy who had thrown the

vermilion was fleeing away. The prosecutrix was crying because

the vermilion had been put on her head.

It is further submitted that in view of the testimony of these

witnesses, the learned trial court has passed the judgment of

conviction on wrong appreciation of the evidence on record.

4. Learned A.P.P. appearing on behalf of the State vehemently

opposed the contentions made by the learned counsel for the

appellant and contended that the prosecution case is well proved

from the testimony of all the witnesses, who were examined on

behalf of the prosecution. The prosecutrix and her friend had

thoroughly corroborated the prosecution story.

5. In view of the submissions made and materials available on record

and keeping in view the testimonies of P.W.-3, the friend of the

prosecutrix, P.W.-4 Vijay Kumar Singh (the Headmaster of the

school) and P.W.-5 Md. Misbahul Hasan Ansari, I am of the view

that it is a fit case for keeping the sentence in abeyance.

6. Accordingly, the I.A. No.6678 of 2023 stands allowed.

7. In consequence, thereof, the appellant Rakesh Yadav is directed to

be released on bail on furnishing bail bond of Rs.25,000/- (Rupees

Twenty Five Thousand) with two sureties of the like amount each

to the satisfaction of the learned Special Judge, POCSO Act,

Garhwa in connection with POCSO Case No.45 of 2022.

8. It is made clear that any observation made in this order will not

prejudice the issue on merit as the appeal is lying pending for its

consideration.

Cr. Appeal (SJ) No.325 of 2023

9. Admit.

10. Call for the Lower Court Records.

11. List this appeal as per its seriatim.

(Subhash Chand, J.) Rohit