Jharkhand High Court
Dhiraj Prasad @ Ishwari Prasad vs The State Of Jharkhand on 10 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 261 of 2023
With
I.A. No. 2119 of 2023
---------
Dhiraj Prasad @ Ishwari Prasad ....... Appellant
Versus
The State of Jharkhand ....... Respondent
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
----------
For the Appellant : Mr. Nikhilesh Kr. Chatterjee, Advocate
Mr. Shiv Prasad, Advocate
For the Respondent : Mrs. Vandana Bharti, A.P.P.
-----------
th
09/Dated: 10 August, 2023
I.A. No. 2119 of 2023:
1. The instant interlocutory application has been filed under Section 389(1)
of the Cr.P.C. for keeping the sentence in abeyance in connection with
the judgment of conviction dated 03.02.2023 and order of sentenced
dated 04.02.2023 passed by the learned Additional Sessions Judge-II,
Koderma in Sessions Trial No. 41 of 2016 arising out of Telaiya P.S.
Case No. 32 of 2015 corresponding to G.R. No. 135 of 2015, whereby
and whereunder, the appellant has been convicted under Section 370(3)
of IPC and sentenced to undergo rigorous imprisonment for 14 years
along with fine of Rs.25,000/- and in default of payment, has been
further directed to undergo rigorous imprisonment for one year.
2. Learned counsel for the appellant has submitted by referring to the
impugned judgment that the prosecution has miserably failed to establish
the case since the victims who have been said to be exerted and allured
for the purpose of providing appointment have not been examined by the
prosecution, as such, serious prejudice has been caused to the appellant.
3. It has been contended by referring to the testimony of P.W.- 5, the
informant, that all the victim girls at the time of occurrence were of the
age of 17-20 years and hence, they cannot be considered to be lacking
the sense that they are being subjected to any illegal activities rather it
has been submitted that it has come in the testimony that the girls have
disclosed to the investigating officer that they were being carried to
Delhi for the purpose of providing appointment.
4. Learned counsel for the appellant, on the basis of the aforesaid premise,
has submitted that it is a case where no ingredient of Section 370(3) of
IPC is being attracted and the prosecution has been unable to prove the
charge beyond all shadow of doubt.
5. While, on the other hand, Mrs. Vandana Bharti, learned Spl. Public
Prosecutor appearing for the respondent-State of Jharkhand has
submitted that although the victim girls have not been examined but it
has come in the record that they have disclosed about the fact that for
exploitation they were being carried to Delhi and as such, it is incorrect
on the part of the appellant to take the ground that the prosecution has
failed to establish the case for commission of offence under Section
370(3) of IPC.
6. We have heard the learned counsel for the parties, perused the finding
recorded by the learned trial court as also the document available on
record including the lower court record and testimony of the witnesses.
7. It appears from the finding recorded by the learned trial court as also
from the lower court record that the victim girls have not been examined.
8. It further appears as per the discussion made by the learned trial court in
the impugned order that the victims although have not been examined
but the P.W.-5, the informant, namely, Kailash Prasad Yadav, has
apprised as is evident from paragraph-18 of the cross-examination that
the girls have disclosed that they were being carried to Delhi by giving
allurement to provide appointment.
9. This Court, in that view of the matter, is of the view that victims who are
the material witnesses, have not been examined, as such, the appellant
has been able to make out a prima facie case for suspension of sentence.
10. The law is well settled that after conviction, there is no presumption of
innocence but if the prima facie case is there for suspending the
sentence, the sentence is required to be suspended.
11. Considering the aforesaid fact, this Court is of the view that the sentence
in connection with Sessions Trial No. 41 of 2016 arising out of Telaiya
P.S. Case No. 32 of 2015 corresponding to G.R. No. 135 of 2015,
deserves to be suspended.
12. Regard being had to the facts and circumstances, the instant interlocutory
application stands allowed.
13. Accordingly, the appellant, named above, is directed to be released on
bail during pendency of appeal on furnishing bail bond of Rs. 25,000/-
(Twenty-Five Thousand only) each with two sureties of the like amount,
to the satisfaction of the Additional Sessions Judge-II, Koderma in
Sessions Trial No. 41 of 2016 arising out of Telaiya P.S. Case No. 32 of
2015 corresponding to G.R. No. 135 of 2015.
14. It is made clear that any observation made hereinabove will not prejudice
the case of the appellant on merit, since, the criminal appeal is lying
pending before this Court.
15. In view thereof, I.A. No. 2119 of 2023 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
