Anil Munda vs The State Of Jharkhand
2023 Latest Caselaw 1131 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Cr.A. (DB) No. 389 of 2021
Anil Munda                              ...   ...     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

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For the Appellant : Mr. Arun Kumar Pandey, Advocate For the State : None

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Order No. 08/Dated 15th March, 2023 I.A. No. 7391 of 2021

This interlocutory application has been filed under

Section 389(1) of the Code of Criminal Procedure for suspension

of sentence passed in consequence of the judgment of conviction

dated 14.07.2021 and order of sentence dated 15.07.2021 in

Special Pocso Case No. 34 of 2020 by learned Special Judge

Pocso, Jamshedpur whereby and whereunder the appellant has

been convicted and sentenced to undergo imprisonment for life

with fine of Rs. 50,000/- to be paid to the victim for her

rehabilitation, for offence under Section 6 of Protection of

Children from Sexual Offences Act read with Section 376(3) of

the Indian Penal Code and in default of payment of fine the

convict was directed to undergo further imprisonment for six

months.

2. Mr. Arun Kumar Pandey, learned counsel for the

appellant, referring to the deposition of P.W. 2-victim, has

submitted that she was a consenting member for the

commission of offence as alleged and as such the ingredient of

Section 376(3) IPC is not attracted.

Learned counsel for the appellant has further submitted

that so far as issue of assessment of age of the girl is concerned,

the same has not conclusively been proved reason being that

the reliance has been given by the learned trial Court upon the

birth certificate given by Mukhiya (Ext. 7) and the photocopy of

Aadhar Card of the victim (Ext. X), which cannot be said to be

conclusive proof of age.

In the backdrop of these facts, prayer has been made for

suspension of sentence during pendency of appeal.

3. None appears for the respondent-State of Jharkhand

4. We have heard learned counsel for the appellant and

gone through the judgment of conviction and order of sentence.

The learned trial Court has taken into consideration the

age of the victim, as would be evident from paragraph 24 of the

impugned judgment, wherefrom it is evident that the trial Court,

taking into consideration the birth certificate obtained from

Mukhiya and photocopy of Aadhar Card of the Victim, has come

to the conclusion that her date of birth is 01.01.2004.

Further the doctor, Dr. Kumari Rekha (P.W. 6) has

assessed the age of victim to be about 16 years +/- one year as

on 29.05.2020. The doctor has further opined on the basis of

radiological report that the victim was about 20 week pregnant

at the time of medical examination. The trial Court has

specifically mentioned at paragraph 24 of the judgment that the

accused did not dispute about the age of victim.

The learned trial Court on the basis of fact that at the

time of commission of offence since the victim was minor as

such dismissed the plea of consensus sexual intercourse and

basis upon which the judgment of conviction and order of

sentence has been passed.

5. Though we are not testing the merit of the case since

criminal appeal is pending, but after going through the

discussion of testimony as has been made by the learned trial

Court in the impugned judgment we are not prima facie satisfied

to suspend the sentence.

Hence, the prayer for suspension of sentence is hereby

rejected.

6. Accordingly, I.A. No. 7391 of 2021 stands rejected.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Alankar/-