Jharkhand High Court
Suresh Patar @ Suresh Singh vs The State Of Jharkhand on 1 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1027 of 2023
With
I.A. No. 5923 of 2023
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Suresh Patar @ Suresh Singh, aged about 22 years, s/o Tikaram Patar @
Tikaram Singh, Male, resident of Barajuri, P.O. & P.S. Ghatshila,
District-East Singhbhum.
....... 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. Ramit Satender, Advocate
For the Respondent : Mrs. Vandana Bharati, A.P.P.
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st
04/Dated: 01 September, 2023
I.A. No. 5923 of 2023:
1. It is being observed that after receipt of LCR, when the case is being
listed for hearing at the stage of hearing of application under Section
389(1) of Cr.P.C., the learned counsel representing the State is seeking
permission of this Court to go through the LCR.
2. Thereby, this Court is of the view that the copy of the LCR is to be
supplied by the Office of this Court upon the respective learned State
counsel representing the appellants/applicants even from the stage of
hearing of application filed under Section 389(1) of Cr.P.C. for effective
assistance to the Court.
3. Accordingly, office is directed to supply the scanned copy of the LCR as
a part of paperbook to the learned State counsel from the stage of hearing
of application filed under Section 389(1) of Cr.P.C.
4. Let this matter be communicated to the learned Registrar General of this
Court for effective compliance of this order.
5. Further, it is also being observed that the LCRs which are coming from
the concerned courts, are without index and proper pagination, therefore,
let the learned Registrar General of this Court communicate this order to
all the judgeships with a direction upon the learned Principal District and
Sessions Judge including the Judicial Commissioner, Ranchi to comply
this order in its letter and spirit.
6. 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 23.03.2023 and order of sentenced
dated 31.03.2023 passed by the learned Special Judge (POCSO), East
Singhbhum, Jamshedpur in Special (POCSO) Case No.63 of 2020
arising out of Ghatshila P.S. Case No. 60 of 2020, whereby and
whereunder, the appellant has been convicted under Sections 376(3), 363
& 366 of IPC and Section 6 of POCSO Act, 2012 and sentenced to
undergo rigorous imprisonment for 25 years along with fine of
Rs.10,000/- for the offence punishable under Section 6 of POCSO Act,
2012 and in default of payment of fine, has been further directed to
undergo rigorous imprisonment for three months; the applicant has also
sentenced to undergo rigorous imprisonment for seven years along with
fine of Rs.5,000/- for the offence punishable under Section 366 of IPC
and in default of payment of fine, has further been directed to undergo
rigorous imprisonment of two months.
7. It has been contended on behalf of the appellant/applicant that the
prosecution has miserably failed to establish the ingredient of Section 6
of the POCSO Act, 2012 since the very age of the victim has not
conclusively been proved.
8. It has been contended by referring to the testimony of the doctor that the
report of the radiologist is not available on record but even then the
learned trial court came to the finding about the age of the victim by
assessing it to be 12 years.
9. Further, the doctor has also not opined of having any physical
relationship since no sign of establishing the physical relationship has
been found in course of the medical examination of the victim.
10. Learned counsel for the appellant/applicant, on the aforesaid premise,
has submitted that it is a fit case where the sentence may be kept in
abeyance.
11. While, on the other hand, Mrs. Vandana Bharati, learned Additional
Public Prosecutor appearing for the respondent-State has submitted that
the age of the victim has conclusively been proved to be 12 years as
would appear from the testimony of P.W.- 10 who on the basis of the
clinical and radiological examination and pathological test had opined
her age to be 12 years (+ one year) as would appear from Ext. 3/1.
12. It has been contended that the victim who happens to be of 12 years of
age has corroborated the prosecution version and merely on account of
the fact that the doctor has not found any sign of establishing physical
relationship, it cannot be said that the ingredient of Section 6 of POCSO
Act is not available.
13. Learned APP, on the aforesaid premise, has submitted that it is not a case
where the sentence is fit to be suspended.
14. We have heard the learned counsel for the parties, gone across the
finding recorded by the learned trial court in the impugned judgment as
also the document available in the lower court record including the
testimony of the witnesses.
15. It appears to this Court after going through the testimony of P.W.- 10,
Dr. Prem Lata, who has medically examined the victim for assessment of
the age and in course thereof, the age was assessed to be 12 years (+ one
year). She was the member of the medical board, as such, she had put her
signature therein.
16. The aforesaid age has not been questioned by the appellant/applicant in
course of trial. Further, the victim, P.W.-2, has fully supported the
prosecution version as would appear from her testimony.
17. We have also considered the testimony of the doctor who has examined
the victim, however, opinion has been given that no spermatozoa seen in
the vaginal swab and smear examination. But, according to our
considered view, taking into consideration the very object and intent of
the POCSO Act, merely because no spermatozoa in the vaginal swab and
smear has been seen in the examination, it cannot be said that there is no
ingredient of Section 6 of POCSO Act since we have found from the
testimony of P.W.-2, victim, who happens to be of 12 years after the age
having been assessed by the medical board, has supported the
prosecution version regarding the culpability of the appellant/applicant
basis upon which the learned trial court has found the substance said to
be proved beyond all reasonable doubt.
18. This Court, on the basis of consideration of the factual aspect, is of the
view that it is not a fit case for suspension of sentence.
19. Accordingly, the instant interlocutory application stands rejected.
20. 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.
21. In view thereof, I.A. No. 5923 of 2023 stands dismissed with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
