Jharkhand High Court
Kamlesh Kumar vs The State Of Jharkhand on 7 November, 2023
1
Cr. Appeal (DB) No.1563/2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1563 of 2023
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Kamlesh Kumar, aged about 22 years, son of Chandrashekhar
Prasad, resident of Village-Jamri, P.O. and P.S. Rajpur, District-
Chatra. .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Binod Kumar Dubey, Advocate
For the State : Mr. Shailendra Kr. Tiwari, A.P.P.
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04/Dated: 07.11.2023
I.A. No.8731 of 2023
1. The instant interlocutory application has been filed under Section
389(1) Cr.P.C. for suspension of sentence dated 18.08.2023 passed by
learned Special Judge, Child Act-cum-Additional Sessions Judge-I,
Chatra in connection with Child Act Case No.05 of 2019 arising out of
Chatra Sadar P.S. Case No. 326 of 2018, (Sadar P.S. Case No. 326 of
2018 pertaining to split up record of CICL in Sadar P.S. Case No. 326
of 2018) whereby and whereunder, the appellant has been convicted
under Sections 366A and 376 of the IPC and Section 4 of the POCSO
Act and has been sentenced to undergo R.I for 5 years with a fine of
Rs.5000/- under Section 366A of the IPC and R.I. for 10 years with a
fine of Rs.10,000/- under Section 4 of the POCSO Act and in default of
payment of fine amount, he has further directed to undergo S.I. for 3
months.
Cr. Appeal (DB) No.1563/2023
2. Mr. Binod Kumar Dubey, learned counsel appearing for the
appellant has submitted that it is a case where there is no ingredient
either of Section 366A of the IPC or Section 4 of the POCSO Act but
even then, the appellant has been convicted in both the offences.
3. It has been submitted by making reference of the testimony of the
Victim P.W.11 that she has not taken the name of the appellant for
commission of offence, which according to the learned counsel for the
appellant is the basis of conviction.
4. Learned counsel for the appellant, on the aforesaid premises, has
submitted that it is a fit case where the sentence may be suspended.
5. While on the other hand, Mr. Shailendra Kr. Tiwari, learned A.P.P.
appearing for the respondent-State, who although, has directed to file
objection vide order dated 31.10.2023 but no objection is available on
record.
6. However, he has orally submitted by opposing the prayer for bail.
7. He has submitted by referring to the testimony of the other
witnesses that all the witnesses have corroborated the prosecution
version which is the basis of conviction, hence, it is not a case where
the sentence is to be suspended.
8. We have heard the learned counsel for the parties and gone
across the finding recorded by the learned trial court in the impugned
judgment as also the testimony of the witnesses along with other
documents available in the lower court records which has been called
for by this Court vide order dated 21.09.2023.
9. It is a case where the appellant has been sentenced under
Section 366A of the I.P.C. and Section 4 of the POCSO Act.
Cr. Appeal (DB) No.1563/2023
10. We have considered the testimony of P.W.11, the Victim in order
to appreciate the submission made on behalf of the appellant,
wherefrom, it is evident that P.W.11 has not uttered the name of the
appellant, rather, she has disclosed the name of one Deepak Kumar
and the entire allegation has been attributed against the said Deepak
Kumar.
11. This Court, after taking into consideration the testimony of P.W.11
as also the statement recorded under Section 164 of the Cr.P.C. of the
Victim, P.W.11 is of the view that it is a fit case where the sentence is to
be suspended.
12. Accordingly, interlocutory application being I.A. No.8731 of 2023
stands allowed.
13. 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 Special Judge, Child Act-cum-Additional
Sessions Judge-I, Chatra, in connection with Chatra Sadar P.S. Case
No. 326 of 2018.
14. 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.)
(Navneet Kumar, J.)
Rohit/-
