Suraj Kumar Boby vs The State Of Jharkhand
2023 Latest Caselaw 2388 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)

                    Criminal Appeal (DB) No. 896 of 2023

Suraj Kumar Boby                                             .... Appellant
                                    Versus
The State of Jharkhand                                       ... Respondent
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellant : Mr. R.S. Mazumdar, Sr. Advocate For the State : Mr. Pankaj Kumar, PP

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th Order No.05/ Dated: 20 July, 2023

I.A. No. 5174 of 2023 The instant application has been filed for suspension of sentence dated 25.05.2023 in connection with the judgment of conviction dated 25.05.2023 passed in Special (POCSO) Case No.35 of 2018, arising out of Mahagama P.S. Case No.67 of 2017, corresponding to G.R. Case No.757 of 2017 by the learned Special Judge (POCSO), Godda, whereby and whereunder the appellant has been convicted for offence under section 376(1) of the Indian Penal Code and section 4 of the POCSO Act and has been sentenced to undergo rigorous imprisonment for 10 years alongwith the fine of Rs.50,000/- for the offence under section 376(1) of IPC.

2. Mr. R.S. Mazumdar, the learned senior counsel appearing for the appellant has submitted that the judgment of conviction cannot be said to be justifiable at least for two reasons: (I) The conviction is also under section 4 of the POCSO Act alongwith section 376 of IPC but while convicting the appellant under section 4 of POCSO Act the procedure laid down under section 94 of the Juvenile Justice (Care and Protection of Children) Act 2015 have not been followed, wherein, the requirement is that in absence of birth certificate the victim is to be medically examined for determination of the age but here no such endeavor has been taken and hence the victim who has been said to be child within the meaning of POCSO Act has not conclusively been proved. Therefore, the conviction under section 4 of POCSO Act cannot be said to be justifiable.

(II) The conviction under section 376 of the Indian Penal Code

can also not be said to the conclusively proved if the testimony of PW7 will be taken into consideration as has been discussed by the learned trial court as under paragraph no.15 of the impugned judgment wherein the investigating officer has come to know in course of investigation that the victim and the appellant was used to talk with each other which has been surfaced by going through the called detail record of the appellant and the victim, therefore, it cannot be said that the ingredient of section 376 of IPC is attracted herein.

3. The further submission has been made that the said principle although will not be applicable in a case arising out of POCSO but since the age has not been conclusively proved, therefore, it cannot be said to have the justifiable conviction under section 376 of the Indian Penal Code.

4. This Court after having heard the learned counsel for the appellant is, hereby, calling upon the State to file an objection as to why the sentence dated 25.05.2023 will not kept in abeyance.

5. Let such objection be filed on or before the next date of hearing.

6. List this case on 10.08.2023.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) RKM