Kamal Kishore Koda vs The State Of Jharkhand
2023 Latest Caselaw 2551 Jhar

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      IN THE HIGH COURT OF JHARKHAND                           AT RANCHI

                         Cr. Appeal (DB) No. 1249 of 2017
                                         With
                                I.A. No. 2265 of 2023
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      Kamal Kishore Koda                          .......             Appellant
                              Versus
      The State of Jharkhand                      .......             Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant : Mr. Pradeep Kr. Deomani, Advocate For the Respondent : Mr. Sanjay Kr. Srivastava, APP

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nd 06/Dated: 02 August, 2023

I.A. No. 2265 of 2023:

1. The instant application has been filed under Section 389(1) of Cr.P.C. seeking therein suspension of sentence in connection with the judgment of conviction dated 25.05.2017 and order of sentence dated 26.05.2017 passed by the learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in G.R. (POCSO) Case No. 27 of 2015 arising out of Manjhgaon (Kumardungi) P.S. Case No.31 of 2015, whereby and whereunder, the appellant has been convicted for offence under Sections 363 and 376 of I.P.C. and under Section 4 of the POCSO Act and sentenced to undergo rigorous imprisonment for 15 years with fine of Rs.10,000/- for the offence under Section 376 of IPC and further sentenced to undergo imprisonment for 05 years alongwith fine of Rs.5,000/- for the offence under Section 363 of IPC and in default of payment of fine, has been further directed to undergo simple imprisonment for one year. Both the sentences were directed to run concurrently.

2. Mr. Pradeep Kr. Deomani, learned counsel for the appellant has submitted by referring to the testimony of P.W.-1, the prosecutrix, who has deposed that at the time of intercourse, she has not shown any resistance. Further, reference of paragraphs-11 and 12 has been made wherein it has been deposed by the prosecutrix that the appellant is just next-door neighbour and she was having fascination for the appellant for which she did not used to talk with the wife of the appellant.

3. Learned counsel for the appellant has submitted that against the maximum punishment, the appellant has already remained in custody for more than 08 years, as such, he has completed more than half of the custody.

4. Reference of the testimony of D.W.-1 has also been made wherein it has been stated that by the D.W.-1 that she knows the prosecutrix and the prosecutrix used to talk with her husband, therefore, it is not a case where any ingredient either of Section 363 or 376 of IPC or Section 4 of POCSO Act is attracted. In that view of the matter, the prayer for keeping the sentence in abeyance has been made

5. This Court, after having heard the learned counsel for the appellant/applicant and taking into consideration the mandate of first proviso to Section 389 of the Cr.P.C. coupled with the judgment rendered by the Hon'ble Apex Court in Somesh Chaurasia vs. State of M.P. and Anr., 2021 SCC OnLine SC 480, is calling upon the State to file objection, if any, to explain as to why the sentence be not kept in abeyance in connection with the judgment of conviction dated 25.05.2017 and order of sentence dated 26.05.2017 passed by the learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in G.R. (POCSO) Case No. 27 of 2015 arising out of Manjhgaon (Kumardungi) P.S. Case No.31 of 2015.

6. Let such objection, if any, be filed on or before the next of date of hearing.

7. Let this matter be listed on 10.08.2023.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Saurabh/-