Sanjay Hari @ Sanjay Ram @ Sanjay ... vs The State Of Jharkhand
2023 Latest Caselaw 1149 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   Cr. Appeal (DB) No. 32 of 2023
Sanjay Hari @ Sanjay Ram @ Sanjay Kumar Ram
                                          .......                Appellant
                        Versus
The State of Jharkhand                    .......                Respondent
                        ---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE SUBHASH CHAND
                        ----------
For the Appellant       : Mr. Shekhar Prasad Sinha, Advocate
For the State           : Mr. Saket Kumar, A.P.P
                        -----------
              th
06/Dated: 16 March, 2023
Per: Sujit Narayan Prasad, J.

I.A. No.194 of 2023

This interlocutory application has been filed under section 389(1) of

the Cr. P.C for suspension of sentence passed in consequence of the

judgment of conviction dated 19.12.2022 and order of sentence dated

20.12.2022 in Spl. (POCSO) Case No.61 of 2020 by learned Special Judge-

POCSO Act, Dhanbad, whereby and whereunder the appellant has been

convicted under Section 376 of the I.P.C and Section 4 of POCSO Act and

directed to undergo rigorous imprisonment for 10 years and fine of

Rs.5,000/- for the offence under Section 4 of the POCSO Act and in case of

default of fine to undergo additional imprisonment of one month and period

of detention already undergone during investigation and trial will be set off

against the sentence of imprisonment awarded to the appellant and entire

amount of fine shall be paid to victim as a compensation in terms of Section

357(1) of Cr. P. C read with Section 9(2) of POCSO Rules, 2020.

Learned counsel appearing for the appellant has submitted that the

basis of adding of charge under section 376 of the I.P.C and Section 4 of the

POCSO Act is absolutely not available in this case, since, as would appear

from the testimony of the witnesses that there was consent of the victim as

has been deposed by the victim herself and therefore, the basic ingredient of

commission of rape which ought to have been taken into consideration by

the trial court since has not been taken into consideration, therefore, it is a fit

case where the sentence is to be suspended.

While on the other hand, Mr. Saket Kumar, learned A.P.P appearing

for the State has vehemently opposed the instant application inter alia on the

ground that P.W-1, the victim was found to be minor as per the discussion

made by the learned trial court at paragraph 26 of the impugned judgment

and basis upon which the learned trial court has given specific finding as

would appear from paragraph 28 wherein it has been observed that since the

victim was minor and child below the age of 18 years and as such the victim

since comes within the meaning of Section 2 (1) (d) of the POCSO Act,

therefore, the plea of the mutual relationship of the accused with the victim

cannot be said to be accepted.

Learned A.P.P on the basis of the aforesaid ground has submitted that

it is not a fit case where the sentence is to be suspended.

We have heard learned counsel for the parties.

It appears from the order dated 02.02.2023 that while admitting the

appeal the Lower Court Record has been called for. We have perused the

Lower Court Record.

This Court on consideration of the finding recorded by the learned

trial court has found that the learned trial court has come to the conclusive

finding on the basis of the fact that the victim was found to be minor and as

such the very plea of consensual commission of intercourse has been

disbelieved. Although we are not dealing with the case on merit, since, the

appeal is pending.

Thus, on the basis of the testimony of the P.W-1, the victim and the

same having been corroborated by the other witnesses, we are not prima

facie satisfied to suspend the sentence.

Accordingly, the instant application is dismissed.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Saket/-