Hari Singh Gope vs The State Of Jharkhand
2023 Latest Caselaw 3322 Jhar

                                1          Criminal Appeal (DB) No.2116 of 2017




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Criminal Appeal (DB) No.2116 of 2017

Hari Singh Gope, son of Dobo Gope, resident of Sildauri, P.S. Jeteya,
District - West Singhbhum                      .....        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. Shiv Prasad Singh, Advocate
For the Respondent          :   Mr. Bhola Nath Ojah, APP
                        -----

Order No.5: Dated 1 September 2023 st

I.A. No.7189 of 2023

The instant interlocutory application filed under Section 389(1) of

the Code of Criminal Procedure for suspension of sentence against the

judgment of conviction dated 8th September 2017 and order of sentence

dated 11.09.2017 passed by learned Additional Sessions Judge-1, West

Singhbhum, Chaibasa, arising out of Jeteya P.S. Case No.05 of 2015,

corresponding to G.R. (POCSO) Case No.07 of 2015, whereby and

whereunder the appellant has been held guilty under Sections 363, 376 &

506 of IPC and under Section 4 of the POCSO Act, but the appellant was

sentenced to undergo 15 years R.I. and fine of Rs.10,000/- under Section

376 of IPC. He was further sentenced to undergo 5 years R.I. and fine of

Rs.5,000/- under Section 363 of IPC and further sentenced to undergo

one year imprisonment and fine of Rs1,000/- under Section 506 of IPC.

2. It has been contended on behalf of the appellant that although the

prayer for suspension of sentence was already rejected on merit vide

order dated 23.02.2018, but as on date, the appellant has completed more

than half of the custody. The submission, therefore, has been made that 2 Criminal Appeal (DB) No.2116 of 2017

since the appeal is of the year 2017 and there is no likelihood of hearing

of the appeal in near future, as such, the prayer for suspension of

sentence may be considered on the ground of the appellant has

completed more than half of the sentence and on the basis of the

judgment rendered by the Hon'ble Apex court in the case of Saudan

Singh Vs. State of Uttar Pardesh reported in 2022 SCC OnLine 697.

3. Mr. Bhola Nath Ojha, learned Additional Public Prosecutor

appearing for the State has submitted that he has received the custody

report, according to which, the appellant has remained in custody

without remission for a period of 07 years, 06 months and 06 days, and

including the remissions, the total period is 09 years 11 months 28 days.

The Learned APP on the basis of the said custody report received from

the competent authority has not disputed the fact that the appellant has

completed more than half of the sentence.

4. We have heard learned counsel for the parties and considered their

arguments.

5. Admittedly, the prayer for suspension of sentence has been

rejected vide order dated 23.02.2018 by a coordinate bench of this Court

on merit. It appears from the instant interlocutory application that the

averment has been made for consideration of suspension of sentence on

merit and in addition thereto the reference of being in custody for more

than half of the sentence made.

6. Since, the appellant is languishing in custody in 19.02.2016, as

would appear from the statement to that effect in paragraph 13 of the

instant interlocutory application and as such, the learned counsel for the 3 Criminal Appeal (DB) No.2116 of 2017

appellant insisted upon for suspension of sentence on the ground

completion of half of the sentence.

7. The fact about completion of more than half of the sentence is not

in dispute as would evident from the submission made by learned

counsel for the Respondent-State.

8. Therefore, this Court is of the view that the appellant since has

completed the half of the sentence and in view of the judgment rendered

by the Hon'ble Apex Court in Saudan Singh Vs. State of Uttar Pardesh

reported in 2022 SCC OnLine 697, we are of the view that the sentence is

to be suspended.

9. Accordingly, the sentence dated 11th September 2017 passed by

learned Additional Sessions Judge-1, West Singhbhum, Chaibasa, arising

out of Jeteya P.S. Case No.05 of 2015, corresponding to G.R. (POCSO)

Case No.07 of 2015, is hereby suspended.

10. Accordingly, the instant I.A. No.7189 of 2023 is allowed.

11. In consequence thereof, the appellant, named above, is directed to

be released on bail on furnishing bail bond of Rs.25,000/- (Rupees

Twenty Five Thousand) with two sureties of the like amount each to the

satisfaction of Additional Sessions Judge-1, West Singhbhum, Chaibasa,

arising out of Jeteya P.S. Case No.05 of 2015, corresponding to G.R.

(POCSO) Case No.07 of 2015.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) R.Kumar /