Jharkhand High Court
Mahanand Minz Aged About 38 Years vs The State Of Jharkhand on 18 October, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 534 of 2020
Mahanand Minz aged about 38 years, Son of Junash Minz,
Resident of Village Tholka Beda, Tongri Toli, P.O &
P.S. Kolebira, District Simdega. --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Gaurav, Advocate
For the State : Mr. Shiv Shankar Kumar, A.P.P.
Order No.05/ 18th October, 2023
I.A. No. 5698 of 2023
The instant interlocutory application has been filed for suspension
of sentence of the appellant under Section 389(1) of Cr.P.C., against the
judgment of conviction dated 23.08.2017 and order of sentence dated
08.09.2017 passed in Special (POCSO) Case No. 22 of 2016 arising out
of Simdega P.S. Case No. 100 of 2016 corresponding to G.R. Case No.
399 of 2016 by the learned Additional Sessions Judge cum Special
Judge, POCSO Act, Simdega whereby and whereunder, the appellant has
been convicted for the offence punishable under Section 376(2)(i) of the
IPC and Section 4 of the POCSO Act and has been sentenced to undergo
R.I. for 10 years with a fine of Rs.10,000/- and in default of payment of
fine to further undergo S.I. for 4 months under Section 376(2)(i) of the
IPC and Section 4 of the POCSO Act separately.
2. It has been contended on behalf of the appellant that the
prosecution has miserably failed to prove the charge. It has been
submitted that the appellant is all along in custody and has remained in
custody for more than 7 years against the maximum sentence of 10
years.
3. Learned A.P.P. has vehemently opposed the prayer for suspension
of sentence while pointing out to the deposition of P.W.2, the mother of
the victim/ prosecutrix aged about 2 ½ years. It has been contended on
behalf of the learned State Counsel that it is a case where the appellant is
found to be involved in commission of heinous crime of sexual assault
upon a minor child of 2 ½ years. As such, it is a not a fit case where the
sentence is to be suspended.
4. We have heard learned counsel for the parties; gone across the
judgment including the findings recorded by the learned Trial Court; the
testimony of the witnesses as is available on LCR along with other
documents.
5. It is evident from the prosecution version that the minor child
aged 2 ½ years has been subjected to sexual assault. The prosecution has
also found that immediately after the child was subjected to sexual
assault, the matter was reported to the Police.
6. It was found that the blood was flowing from the urine canal of
the child and the victim was not wearing any undergarment.
7. This Court by taking into consideration the said version duly
been proved by the doctor P.W.4 where the doctor has given a specific
finding that posterior tear present over perineum and hymen and
annular hymen opening with fresh blood oozing margin, bleeding
present from the perineum. Perineum swab taken and smear sent for
microscopic examination for presence of spermatozoa and was report
that spermatozoa seen intact with head, body and tail over the smear
vide slide no. 3/8 dated 08.09.2016, is of the view that it is not a fit case
where sentence is to be suspended.
8. Accordingly, the prayer for suspension of sentence made through
I.A. No. 5698 of 2023 is rejected.
9. However, any observation made herein above will not prejudice
the case of the parties, since the appeal is pending for its consideration
under the heading for hearing.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
A.Mohanty
