Jharkhand High Court
Ramu Murmu vs The State Of Jharkhand on 16 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1048 of 2023
Ramu Murmu --- --- 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. Vikas Kumar, Advocate
For the State : Mr. Pankaj Kumar, P.P.
Order No.04/ Dated 16th August, 2023
I.A. No. 5719 of 2023
The instant interlocutory application has been filed on behalf of
the appellant for suspension of sentence in connection with judgment
dated 19.06.2023 and order of sentence dated 21.06.2023 passed by the
learned District & Additional Sessions Judge-II, Seraikella in Sessions
Trial No. 86 of 2015 arising out of Adityapur P.S. Case No. 149 of 2015
corresponding to G.R. Case No. 430 of 2015 whereby the appellant has
been convicted for the offence punishable under Section 376 of the IPC
and has been sentenced to undergo R.I. for 10 years with a fine of
Rs.10,000/- and a default sentence.
2. It has been contended on behalf of the appellant that P.W.4, the
victim having age of 30 years, has admitted in her deposition that she
has consensually established physical relationship with the appellant for
the last 10 years, however, on the promise of solemnization of marriage.
The aforesaid version has also been supported by the testimonies of the
father of the victim P.W.1 and sister of the victim P.W.2. Learned
counsel for the appellant in the aforesaid premises has submitted that
consensual physical relationship of the lady/ victim of 30 years of age
with the appellant cannot be construed to be rape within the meaning of
Section 375 of the I.P.C.
3. This Court has called upon the State to file an affidavit in
objection as would appear from the order dated 20.07.2023. The affidavit
in objection has been filed in terms of the aforesaid order.
4. Learned counsel for the appellant has submitted that except the
reiteration of the testimony of the prosecution witnesses no other point
has been taken therein save and except making reference to Section 90
of the IPC. It has been contended that so far as applicability of Section
90 IPC is concerned, the same, in the facts and circumstances of the
case, will not be applicable, since, it is the version of the victim girl who
had consensual physical relationship with the appellant for 10 years and
as such, it cannot be said that the said consent is based upon
misconception of fact, rather, only when the appellant solemnized
marriage with the other girl then only the instant case has been instituted
that too after continuous physical relationship for 10 years. Learned
counsel for the appellant, in the aforesaid premises has submitted that it
is a fit case where sentence is to be suspended, since, the prosecution has
miserably failed to establish the case to be proved beyond all shadow of
reasonable doubts.
5. While on the other hand, learned P.P. appearing for the State of
Jharkhand has submitted by referring to the testimony of the witnesses,
more particularly prosecutrix P.W.4 the victim, who has supported the
commission of crime and remained consistent in her cross examination.
It has been contended that the learned Trial Court has passed the
judgment of conviction by taking into consideration the testimony of the
victim girl, which, cannot said to be not based on any cogent evidence
and as such it is not a case where the sentence is to be suspended.
6. We have heard the learned counsel for the parties; perused the
materials available on record as also the findings recorded by the learned
Court and gone through the lower court records containing the
testimonies of the witnesses and other documents.
7. This Court has considered the arguments advanced on behalf of
the both the parties and also taken into consideration the testimony of the
witnesses, more particularly the victim P.W.4, who in specific term has
deposed that she was having consensual physical relationship with the
appellant for the last 10 years, however, on the false pretext of marriage.
It has further come in here testimony that when she asked the appellant
to solemnize marriage, the appellant denied to marry her and solemnized
marriage with another girl and only then the F.I.R was instituted. The
aforesaid version has been corroborated by the testimony of P.W.1 and
P.W.2, who happen to be the father and sister of the victim. However,
objection has been taken by making reference of the Section 90 IPC,
which, according to our considered view is not applicable to the facts
and circumstances of the case, since, the conviction is under section 376
of the IPC and as such the ingredient of section 376 IPC is to be seen
without taking aid of the other provision.
8. Considering thereof, we are of the prima facie view that it is fit
case where sentence is to be suspended during pendency of this appeal.
9. Accordingly, the appellant, above named, is directed to be
released on bail on furnishing bail bonds of Rs.25,000/- (Rupees Twenty
Five Thousand only) with two sureties of the like amount each to the
satisfaction of the learned District & Additional Sessions Judge-II,
Seraikella in connection with Sessions Trial No. 86 of 2015 arising out
of Adityapur P.S. Case No. 149 of 2015 corresponding to G.R. Case No.
430 of 2015, subject to the conditions that the appellant will cooperate in
the trial and shall appear on each and every date before the Trial Court,
failing which, the learned Trial Court will be at liberty to cancel the bail
bond.
10. I.A. No.5719 of 2023 is allowed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
A.Mohanty
