Jharkhand High Court
Ajit Kumar Mahto @ Kanta Mahto vs The State Of Jharkhand on 23 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 185 of 2023
Ajit Kumar Mahto @ Kanta Mahto ........... 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, Advocate
For the State : Mr. Shailesh Kumar Sinha, A.P.P.
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03/Dated: 23 March, 2023
I.A. No.1480 of 2023
The present interlocutory application has been filed by the appellant
for suspension of sentence and to grant bail to the appellant in Special POCSO
Case No.22 of 2021, arising out of Mandu P.S. Case No.122 of 2021 during
pendency of the present criminal appeal which has been preferred against the
judgment of conviction dated 20th December, 2022 and order of sentence dated
23rd December, 2022 passed by the learned Sessions Judge, Ramgarh, whereby
the appellant has been convicted for the offence under Section 376(2) of the
Indian Penal Code and Section 4 of the POCSO Act and has been sentenced to
undergo rigorous imprisonment for 10 years for the offence under Section 376(2)
of the I.P.C. Further he is sentenced to undergo rigorous imprisonment for ten
years for the offence under Section 4 of the POCSO Act and both sentences were
directed to run concurrently.
Learned counsel for the appellant has submitted that the appellant has
been convicted for the offence under Section 376(2) of the Indian Penal Code
and Section 4 of the POCSO Act which has been supported by the witnesses,
namely, Suresh Turi (the P.W.-3), Nunibala Devi (the P.W.-4) and P.W.5 (the
victim girl) but their testimony have not been find corroborated from the
testimony of the the P.W.7-Dr. Archana Kumari, who has examined the victim. It
has been submitted by referring to paragraph 18 of the impugned judgment
where the learned trial court has given consideration about the testimony of the
doctor, P.W.-7, wherein it has been found that no sign of local injury was found
on private part and even no spermatozoa was found. It has further been
recorded by the doctor that although in the clinical examination possibility of
intercourse is not excluded but on medical examination of the victim no
spermatozoa was found in the vaginal swab.
Learned counsel for the appellant has submitted by referring to the
Ext.5, the medical report, wherein the doctor has also given an impression of no
evidence of violence, no obvious evidence of sexual assault (rape), no local
injury sign present and no tenderness. Sample of vaginal swab was taken and
sent to the laboratory, even that no spermatozoa was found. Learned counsel for
the appellant in the aforesaid backdrop has submitted that it is a case where
prima facie the appellant has been able to make out a case for suspension of
sentence.
This Court after having heard the learned counsel for the appellant and
when about to call upon the State to file objection, Mr. Shailesh Kumar Sinha,
learned A.P.P. has submitted that counter affidavit has already been filed in
objection to the prayer made in the instant interlocutory application.
This Court, therefore, is of the view that there is no need to call upon
the State for filing fresh objection, since, the objection by way of an affidavit has
already been filed on 18th March, 2023 by serving a copy of same upon the
learned counsel appearing for the appellant.
This Court has perused the said objection.
The learned A.P.P. has submitted by referring to the stand inter alia
taken in the said affidavit that it is a case where the Suresh Turi (the P.W.-3),
Nunibala Devi (the P.W.-4) and P.W.5 (the victim girl) have supported the
prosecution version. It has also been submitted that it is incorrect on the part of
the appellant to take the ground that the doctor, the P.W.-7, has not supported
the case, rather the doctor has found the possibility of intercourse by giving an
opinion on clinical examination to the effect that the possibility of intercourse is
not excluded.
In the aforesaid background, the learned A.P.P. has submitted that it is
not a fit case where the sentence is to be kept in abeyance.
We have heard the learned counsel for the parties and on appreciation
of rival submissions of the parties as also on perusal of the lower court records
which contains the Ext.5, the report of the doctor (the P.W.-7). The Ext.5 is
required to be considered by this Court in order to appreciate the argument
advanced on behalf of the parties to the effect that the appellant has tried to
made out a ground that the testimony of the P.Ws.-3, 4 and 5 have not found in
corroboration with testimony of the the doctor (the P.W.-7).
This Court on perusal of the testimony of the P.W.-7 has found that no
local injury sign present, no tenderness, no spermatozoa was found on clinical
examination of the victim as also no obvious evidence of sexual assault.
Regard being had to the facts and circumstance of the case, we are of
the opinion that it is a fit case where the sentence is required to be kept in
abeyance.
In consequence thereof, the appellant, above named, is directed to be
released on bail on furnishing bail bond of Rs.25,000/- (Rupees Twenty Five
Thousand) with two sureties of the like amount each to the satisfaction of the
learned Sessions Judge, Ramgarh in connection with Special POCSO Case No.22
of 2021.
Accordingly, the I.A. No.1480 of 2023 stands disposed of.
Any observation made herein will not prejudice the issue in merit as
the appeal is lying pending for its consideration.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Rohit Pandey/-
