David Horo vs The State Of Jharkhand
2023 Latest Caselaw 1293 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  ------
             Cr. Appeal (DB) No.61 of 2023
                                 With
                     I.A. No.1183 of 2023
                               ------
David Horo, aged about 24 years, son of Benjamin Horo
                                          ....    ....            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. A.K. Kashyap, Sr. Advocate
       For the State       : Mr. Vineet Kumar Vashistha, APP
                         ------
03/Dated:23rd March,2023
Per Sujit Narayan Prasad, J.

I.A. No.1183 of 2023

The instant interlocutory application has been filed under

Section 389 (1) of the Cr.P.C. for suspension of sentence in

connection with POCSO Case No.19 of 2019 arising out of

Namkum (Kharsidag OP) P.S. Case No.270 of 2018, whereby and

whereunder, the appellant, namely, David Horo has been

convicted and sentenced to under rigorous imprisonment for life

for the offence under Section 376(DA) of the IPC.

2. Mr. A.K. Kashyap, learned senior counsel for the appellant

has submitted that although, it is a case of Section 376(DA) of the

IPC read with Sections 4 and 6 of the POCSO Act and Section

25(1-B)(a) read with Section 35 of the Arms Act. But, so far as

the issue of applicability of offence under Section 376(DA) read

with Sections 4 and 6 of the POCSO Act is concerned, it would be

evident from the testimony of the prosecution witnesses that the

commission of rape has not conclusively been proved.

It has been submitted by referring to the testimony of the

Doctor that he had also not found the commission of rape said to

have conclusively been proved.

3. While on the other hand, Mr. Vineet Kumar Vashistha,

learned APP appearing for the State has drawn the attention of the

testimony of P.W.11-Assistant Director, DFSL, Ranchi who had

conducted the DNA test in order to match the semen on the cloth

of the victim with the semen of the appellant, namely, David

Horo, as has been discussed at paragraph no.18 of the impugned

judgment from which it is evident that semen of the appellant has

been matched as was found in the cloth of the victim.

4. Learned APP, in view of the aforesaid submission has

submitted that it is incorrect on the part of the appellant to take

the ground that there is no evidence against the appellant.

5. Regard being had to the facts and circumstances of the case

and after taking into consideration the lower court records, this

Court, therefore, is not prima-facie satisfied with the prayer made

in the instant interlocutory application for keeping the sentence in

abeyance.

6. Accordingly, the instant interlocutory application being I.A.

No.1183 of 2023 is dismissed.

7. It is made clear that any observation made herein will not

prejudice the issue on merit as the appeal is lying pending for its

consideration.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Rohit/-