Afroj Khan vs The State Of Jharkhand
2023 Latest Caselaw 4022 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr. Appeal (SJ) No. 286 of 2023

Afroj Khan                                                                ... Appellant
                                          -Versus-
The State of Jharkhand                         ...                         ... Respondent

      CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA

              For the Appellant :- Mr. Vishal Kumar Trivedi, Advocate;
                                   Mr. Jai Mohan Mishra, Advocate
              For the State     :- Mr. Subodh Kumar Dubey, Advocate

                                               ...

06/17.10.2023: IA (Cri.) No. 7920 of 2023 Heard the learned counsel for the appellant as well as the learned counsel for the State on the interlocutory application filed by the appellant for suspension of sentence during the pendency of this criminal appeal.

2. This criminal appeal was directed against the judgment of conviction dated 10.03.2023 and the order of sentence dated 16.03.2023, passed by the learned Exclusive Special Judge, POCSO Act, Palamau at Daltonganj in Special POCSO Case No. 11 of 2016, whereby and whereunder, the appellant has been convicted under sections 376(1)/ 363 of IPC as well as under section 4 of the POCSO Act and sentenced to undergo RI for 8 years and to pay fine of Rs.20,000/- for offence under section 376(1) of IPC and in default RI for 6 months and further sentenced to undergo RI for 6 years and to pay fine of Rs.10,000/- for offence under section 363 of IPC and in default RI for 6 further months but in section 4 of the POCSO Act, sentence of either description may be awarded, in view of facts, the sentence has been awarded under section 376(1) of the IPC which is greater in degree.

3. The learned counsel for the appellant has submitted that the FIR was lodged after a delay of 2 days even though the police station is quite nearby. The learned counsel has further submitted that the victim has stated that the accused kept her all night in jungle but there is no injury on the body part of the victim, according to the medical report, which makes the whole statement of the victim doubtful. The learned counsel has further submitted that investigating officer of the case has stated that he arrested both of them from jungle and was directly brought to the police station but the same does not corroborate with the statement of the victim as she said that she was kept one night at the house of one constable. The statement of the victim was not recorded by any woman police officer which violates the law. The victim has changed her clothes and washed her private part before the medical examination. Earlier she had said she did not wash her clothes. Her last menstruation period was on 22.01.2016. In para-9 it is indicated she is pregnant by 5 weeks, 1 day and examination was conducted on 09.03.2016. If the rape was on 05.03.2016 how can she be pregnant if she did not have sex with someone else. It is observed she has indulged sexually with someone else. The learned Court-below has not considered the medical witnesses nor has made reliance upon the documents exhibited by the medical department. The learned counsel has further submitted that on side the victim has said that she has love affair with the accused and other side she said that he has raped her. There is major contradiction between FIR, statement under section 164 CrPC and statement before the learned Court-below. The learned counsel has further submitted that the learned Court-below has failed to look into the medical report of the victim, in which, no recent forceful sexual intercourse was found. In such circumstances, the learned counsel for the appellant is seeking suspension of sentence, during pendency of this criminal appeal. The learned counsel has further submitted that the appellant has been in custody since 22.12.2022.

4. Learned counsel for the State has opposed this interlocutory application for suspension of sentence, during the pendency of this criminal appeal and has submitted that the victim is between 14 to 16 years of age and the offence was committed against a minor girl. There is direct allegation in the FIR and that she has supported the prosecution case under section 164 CrPC.

5. Having gone through the records of the case, considering the arguments advanced by the learned counsel for the parties and also considering the period of custody already spent by the appellant and in the facts and circumstances of the case, I am not inclined to suspend the sentence of the appellant, during pendency of this criminal appeal, in Special POCSO Case No. 11 of 2016, arising out of Manatu PS Case No.08 of 2016.

6. Accordingly, IA (Cri.) No. 7920 of 2023 stands dismissed.

S.B.                                                    (Ratnaker Bhengra, J.)