Jharkhand High Court
Malik Yadav vs State Of Jharkhand on 10 November, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 230 of 2022
With
I.A. No. 3655 of 2023
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Malik Yadav ....... Appellant
Versus
State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Pankaj Kr. Choudhary, Advocate
For the Resp.-State : Mr. Ravi Prakash, A.P.P.
For the Informant : Mr. Ranjan Kr. Singh, Advocate
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th
08/Dated: 10 November, 2023
I.A. No. 3655 of 2023:
1. The instant interlocutory application has been filed under Section 389(1)
of the Cr.P.C. for keeping the sentence in abeyance in connection with
the judgment of conviction and sentence dated 06.01.2022 passed by the
learned Additional Special Judge (POCSO), Godda in Special POCSO
Case No. 43 of 2020 arising out of Balbadda P.S. No. 97 of 2020
corresponding to G.R. Case No. 1104 of 2020, whereby and whereunder,
the appellant has been convicted under Section 302, 376(3) and under
Section 6 of POCSO Act and sentenced to undergo rigorous
imprisonment for life along with fine of Rs.50,000/- for the offence u/s
302 of IPC and under Section 6 of POCSO Act, the appellant has been
sentenced to undergo rigorous imprisonment for 30 years along with fine
of Rs.1,00,000/- and in default of payment of fine, the appellant has
further been sentenced to undergo rigorous imprisonment for one year
and two years for each offence.
2. Learned counsel for the appellant has submitted that it is a case where
the prosecution has miserably failed to prove the charge said to be
beyond all reasonable doubt since there is no eye witness.
3. It has been submitted that the judgment passed by the learned trial court
based upon the material available before it is based upon the last seen
theory but the principle which is to be applied in a case of last seen
theory for the purpose of convicting a person, is not available, even then,
the appellant has been convicted, as such, it is a case where the sentence
is fit to be suspended.
4. While on the other hand, learned APP appearing for the State as also the
learned counsel for the informant have jointly opposed the prayer so
made for suspension of sentence.
5. It has been submitted that on the earlier occasion, one interlocutory
application was filed being I.A. No. 6119 of 2022 before the co-ordinate
Bench but the same was withdrawn as would appear from the order
dated 17.10.2022 and the instant interlocutory application is the second
one for suspension of sentence.
6. It has been submitted that it is incorrect on the part of the appellant to
take the ground that there is no evidence to convict the appellant rather
the cogent material is there, more particularly, the chemical examination
report of the DNA which has been found to be matched as would appear
from the Exhibit no. 10, 11, 12, 13 and particularly Exhibit No.16.
7. Learned counsel, on the aforesaid premise, has submitted that it is not a
case where the sentence is to be suspended since it is a case where a girl
of 13 years, who was dumb and deaf, has been subjected to sexual
assault and thereafter has brutally been killed.
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 and the exhibits available therein.
9. This Court, in order to examine the argument advanced on behalf of the
appellant to the effect that it is not a case of eye witness rather it is a case
of last seen, has gone across the testimony of P.W.-1 and P.W.-3 as also
through the DNA test report which is available in exhibit no.16 and as
would appear therefrom that the clothes of the appellant along with the
semen contained therein having been marked as C-1 and D-1 has been
found to be matched.
10. This Court, has further found from the material available on record that
the appellant has also confessed his guilt in course of investigation and it
has been found in corroboration with the report of the scientific expert.
11. Learned trial court based upon the said testimony and taking into
consideration the gravity of crime committed by the appellant has
convicted the appellant for committed crime with a minor girl of 13
years, who was dumb and deaf.
12. In view thereof, this Court is of the view that it is not a case where the
sentence is fit to be suspended.
13. Accordingly, the instant interlocutory application stands rejected.
14. However, any observation made hereinabove will not prejudice the case
of the appellant/applicant on merit, since, the criminal appeal is lying
pending before this Court.
15. In view thereof, I.A. No. 3655 of 2023 stands dismissed with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
