Dhanu Kaibartta vs State Of Jharkhand
2023 Latest Caselaw 2036 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         Cr. Appeal (DB) No. 385 of 2023
                                        With
                                I.A. No. 2709 of 2023
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      Dhanu Kaibartta                             .......             Appellant
                              Versus
      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. Gautam Kumar, Advocate For the Respondent : Mr. Shailendra Kumar Tiwari, A.P.P.

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th 03/Dated: 10 May, 2023

The appeal had been admitted and the LCR had been called for as would appear from the order dated 29.03.2023. I.A. No. 2709 of 2023:

With the consent of the parties, the instant interlocutory application has been heard.

The instant application has been filed under Section 389(1) of Cr.P.C. seeking therein suspension of sentence in connection with Sessions Trial No. 192 of 2021, by which the appellant has been sentenced to undergo rigorous imprisonment for 25 (twenty five) years for the offence under Section 376(D) of IPC alongwith fine of Rs.10,000/- and further to undergo rigorous imprisonment for 3 (three) years for the offence under Section 66E of the I.T. Act and further to undergo rigorous imprisonment for 5 (five) years for the offence under Section 67A of I.T. Act along with fine of Rs. 10,000/- and in default of payment of all the fine, has been further directed to undergo simple imprisonment for six months.

Learned counsel for the appellant has submitted by pointing out infirmity in the impugned judgment basis upon which the ground has been taken that it cannot be said that the prosecution has been able to substantiate the charge beyond all shadow of doubt since the very basis of conviction is the CD of the video by which the allegation of taking photographs and making it viral is there but as would appear from the LCR that the said CD has been made admissible without taking into consideration the requirement as stipulated under Section 65(B) of the Indian Evidence Act.

It has further been pointed out that under Section 376(D), the allegation has been levelled that the victim has been subjected to gang rape in the bush but as would appear from the testimony of the doctor, P.W.-5, that no external injury has been found, which cannot be ignored, hence, it is a fit case where the sentence may be suspended.

This Court, after having heard the learned counsel for the appellant/applicant and taking into consideration the mandate of first proviso to Section 389 of the Cr.P.C. coupled with the judgment rendered by the Hon'ble Apex Court in Somesh Chaurasia vs. State of M.P. and Anr., 2021 SCC OnLine SC 480, is calling upon the State to file objection, if any, to explain as to why the sentence be not kept in abeyance.

Let such objection, if any, be filed on or before the next of date of hearing.

Let this matter be listed on 14.06.2023.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Saurabh/-