Jharkhand High Court
Krishna Swarnkar @ Krishna Kr. ... vs The State Of Jharkhand on 16 October, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 712 of 2023
With
I.A. No. 4262 of 2023
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Krishna Swarnkar @ Krishna Kr. Swarnkar ....... Appellant
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Atanu Banerjee, Advocate
Mr. Naresh Prasad Thakur, Advocate
For the Respondent : Mrs. Shweta Singh, A.P.P.
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th
06/Dated: 16 October, 2023
I.A. No. 4262 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 dated 05.04.2023 and order of sentenced
dated 06.04.2023 passed by the learned Special Judge POCSO Act,
Dhanbad in Spl. (POCSO) Case No. 74 of 2020 arising out of Kenduadih
P.S. Case No. 95 of 2020, whereby and whereunder, the appellant has
been convicted and sentenced to undergo maximum punishment of
rigorous imprisonment for twenty years for the offence punishable under
Section 4(2) of POCSO Act along with fine of Rs.5,000/- and in default
of payment of fine, the appellant has further been directed to undergo
additional imprisonment for one month.
2. Mr. Atanu Banerjee, 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 proved beyond all reasonable doubt since the P.W.-1,
the victim, has herself been inconsistent what she had stated in the FIR
and the statement recorded under Section 164 Cr.P.C. and further in the
testimony recorded in course of trial.
It has been contended that there is no reference of any allegation of
commission of rape if the allegation would be taken from perusal of the
FIR as also the statement recorded under Section 164 Cr.P.C.
Learned counsel for the appellant, on the aforesaid premise, has
submitted that it is a fit case where the sentence is to be suspended.
3. While, on the other hand, Mrs. Shweta Singh, learned Additional Public
Prosecutor appearing for the respondent-State has vehemently opposed
the prayer for suspension of sentence by making reference of the
testimony of P.W.-1, the victim girl, who in course of her examination
has specifically supported the prosecution version about the commission
of crime and has also deposed that she was subjected to rape.
It has further been contended by referring to the statement recorded
under Section 164 Cr.P.C. wherein at paragraph-24 it has been stated by
the victim girl that the content of 164 Cr.P.C. statement was never been
read over to her and she merely put her signature, hence, 164 Cr.P.C.
statement even if there is no version of victim girl of commission of no
rape, the same will have no aid to the appellant for the purpose of
suspension of sentence said to prevail upon the testimony of P.W.-1
wherein she has supported the commission of crime committed by the
appellant.
4. This Court has heard the learned counsel for the parties and taking into
consideration the version of P.W.-1 in course of trial wherein she has
narrated the entire story in course of deposition that the appellant had
entered her house and had closed the door of the house. The appellant
removed her entire dress and started molesting her. She fell on the
ground. The appellant had tied her mouth by Odhani and forcefully
established physical relation with her and when the victim started crying,
the appellant fled away from there.
5. This Court, after having considered the testimony of P.W.-1, is of the
view that it is not a fit case where the sentenced is to be suspended.
6. Accordingly, the instant interlocutory application being I.A. No. 4262 of
2023 stands rejected.
7. It is made clear that any observation made hereinabove will not prejudice
the case of the appellant on merit, since, the criminal appeal is lying
pending before this Court for its consideration.
(Sujit Narayan Prasad, J.)
(Deepak Roshan, J.)
Saurabh/-
