Jharkhand High Court
Anil Saw vs The State Of Jharkhand on 4 October, 2023
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 336 of 2023
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Anil Saw ... ... Appellant
Versus
The 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. Shadab Eqbal, Advocate
Mr. Haroon Rasheed, Advocate
Mr. Anshuman Om, Advocate
For the Respondent : Mr. Pankaj Kumar Mishra, A.P.P
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Order No. 07 : Dated 4 October, 2023
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Per Sujit Narayan Prasad, J:
I.A. No. 6995 of 2023
1. The instant interlocutory application has been filed under
Section 389 (1) of the Code of Criminal Procedure on
behalf of appellant, named above, seeking suspension of
sentence during the pendency of the instant appeal after
suspending the impugned order of sentence dated
25.01.2023 passed by the learned Special Judge-POCSO
Act, Dhanbad in Spl. POCSO Case No. 51 of 2022 arising
out of Chirkunda P.S. Case No. 70 of 2022, whereby and
whereunder the appellant has been convicted under
Sections 366, 376(2)(n) of the Indian Penal Code and
under Section 6 of the POCSO Act and sentenced to RI for
five years and fine of Rs. 2000 for the offence under
section 366 IPC, in case of default of fine amount
additional imprisonment for fifteen days; RI for twenty
years and fine of Rs. 5000 for the offence punishable
under Section 6 of the POCSO Act, in case of default of
fine amount additional imprisonment of one month. Both
the sentences were directed to run concurrently.
2. At the outset, it has been submitted that this Court
provided an opportunity to the learned State counsel to
file objection, as would be evident from order dated
11.08.2023. Pursuant thereto, objection affidavit has been
filed.
3. Learned counsel for the appellant has submitted that it is
a case where the prosecution has miserably failed to prove
the charge, beyond all reasonable doubt, as per the
finding recorded by learned trial Court in the impugned
judgment, whereby the appellant was convicted under
Section 366, 376(2)(n) of the Indian Penal Code and under
Section 6 of the POCSO Act. Such contention has been
made on the ground that there is no reference of
commission of sexual assault as per the statement, as
recorded of the victim under Section 164 Cr.P.C.
4. However, the victim subsequent thereto has changed its
version while deposing in course of trial by stating that
she was subjected to sexual assault 2-3 times.
5. It has been contended on the basis of aforesaid ground
that the statement recorded under Section 164 Cr.P.C
which has been marked as Exhibit P/1/1 by the Judicial
Magistrate (P.W. 8) who was also examined and cross-
examined but there is no reference in the impugned
judgment about the statement recorded under Section 164
Cr.P.C. and the statement which has been recorded by
the girl in course of trial.
6. It has been contended that the girl even before the I.O.
has not uttered a word about commission of sexual
assault by the appellant.
7. Learned counsel for the appellant on the basis of
aforesaid ground has submitted that the impugned
judgment since has been passed giving complete go by to
the statement of the victim girl recorded under section 164
Cr.P.C. even though the same is of the corroborative value
but once the statement has been recorded under section
164 Cr.P.C. it is the bounden duty of the learned trial
Court to consider either way. Thus, the submission has
been made that it is a case where the version of the girl
appears to be improved as per the testimony recorded in
course of trial. Therefore, it is a fit case where the
sentence is to be suspended.
8. While on the other hand, learned A.P.P. appearing for the
respondent-State has submitted by referring to the
statement of the victim, P.W. 1, who has supported the
prosecution version of commission of establishing physical
relation 2-3 times. The submission has bene made that
her testimony has also been corroborated by other
witnesses and hence, if the learned trial Court based upon
the testimony of prosecution witnesses has found the
ingredient of Sections 366, 376(2)(n) of the Indian Penal
Code and under Section 6 of the POCSO Act, available
against the appellant, which led the learned trial Court to
convict the appellant for the aforesaid offences, which
cannot be said to suffer from error. Therefore, it is not a
case where the sentence is to be suspended.
9. We have heard learned counsel for the parties, gone
across finding recorded by the learned trial Court and the
documents available in Lower Court Record as also the
objection affidavit filed by the respondent-State.
10. It appears from the record that the statement of the
girl, immediately after recovery, was recorded before the
Magistrate. We after going through the statement recorded
under section 164 Cr.P.C. has found that there is no
reference of commission of sexual assault. However, in
course of trial, the victim, who has been examined as P.W.
1, on the Court query has deposed that she was subjected
to sexual assault 2-3 times.
11. We have considered the testimony of the I.O. in order
to come to the conclusion with respect to the version of
the victim, and found from paragraph 14 of the testimony
of the I.O., who was examined as P.W. 6, wherein the I.O.
has denied that mother of the victim has said about
commission of sexual assault against her daughter.
12. It further appears from the testimony of the doctor
that the doctor (P.W. 7) has not corroborated about the
commission of sexual assault.
13. Regard being had to the facts and circumstances of
the case, we are of the view that the instant Interlocutory
Application deserves to be allowed.
14. Accordingly, I.A. No. 6995 of 2023 stands allowed.
15. In view thereof, the appellant named above, is
directed to be released on bail on furnishing bail bond of
Rs.10,000/- (Rupees Ten Thousand only) with two
sureties of the like amount each to the satisfaction of
learned Special Judge-POCSO Act, Dhanbad in Spl.
POCSO Case No. 51 of 2022 arising out of Chirkunda P.S.
Case No. 70 of 2022.
16. It is made clear that any observation made
hereinabove will not prejudice the case of the prosecution
on merit since the appeal is lying pending for its
consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Alankar/
