Jharkhand High Court
Mahesh Yadav vs The State Of Jharkhand on 8 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 360 of 2023
With
I.A. No.2634 of 2023
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Mahesh Yadav ....... Appellant
Versus
The State of Jharkhand ....... Respondent
With
Cr. Appeal (DB) No. 261 of 2023
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Dhiraj Prasad @ Ishwari Prasad ....... 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. Amarendra Kumar, Advocate
For the Respondent : Mr. Subodh Kr. Dubey, A.P.P.
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th
06/Dated: 08 September, 2023
I.A. No. 2634 of 2023 in Cr. Appeal (DB) No. 360 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 03.02.2023 and order of sentenced dated
04.02.2023 passed by the learned Additional Sessions Judge-II, Koderma
in Sessions Trial No. 41 of 2016 arising out of Telaiya P.S. Case No. 32 of
2015 corresponding to G.R. No. 135 of 2015, whereby and whereunder, the
appellant has been convicted under Section 370(3) of IPC and sentenced to
undergo rigorous imprisonment for 14 years along with fine of Rs.25,000/-
and in default of payment, has been further directed to undergo rigorous
imprisonment for one year.
2. Learned counsel for the appellant has submitted by referring to the
impugned judgment that the prosecution has miserably failed to establish
the case since the victims who have been said to be exerted and allured for
the purpose of providing appointment have not been examined by the
prosecution, as such, serious prejudice has been caused to the appellant.
3. It has been contended by referring to the testimony of P.W.- 5, the
informant, that all the victim girls at the time of occurrence were of the age
of 17-20 years and hence, they cannot be considered to be lacking the sense
that they are being subjected to any illegal activities rather it has been
submitted that it has come in the testimony that the girls have disclosed to
the investigating officer that they were being carried to Delhi for the
purpose of providing appointment.
4. Learned counsel for the appellant, on the basis of the aforesaid premise, has
submitted that it is a case where no ingredient of Section 370(3) of IPC is
being attracted and the prosecution has been unable to prove the charge
beyond all shadow of doubt.
5. It has also been submitted that the sentence of identically placed co-convict,
namely, Dhiraj Prasad @ Ishwari Prasad, has already been kept in abeyance
vide order dated 10.08.2023 passed in Cr. Appeal (DB) No. 261 of 2023.
6. While, on the other hand, Mr. Subodh Kumar Dubey, learned Additional
Public Prosecutor appearing for the respondent-State of Jharkhand has
submitted that although the victim girls have not been examined but it has
come in the record that they have disclosed about the fact that for
exploitation they were being carried to Delhi and as such, it is incorrect on
the part of the appellant to take the ground that the prosecution has failed to
establish the case for commission of offence under Section 370(3) of IPC.
7. We have heard the learned counsel for the parties, perused the finding
recorded by the learned trial court as also the document available on record
including the lower court record and testimony of the witnesses.
8. It appears from the finding recorded by the learned trial court as also from
the lower court record that the victim girls have not been examined.
9. It further appears as per the discussion made by the learned trial court in the
impugned order that the victims although have not been examined but the
P.W.-5, the informant, namely, Kailash Prasad Yadav, has apprised as is
evident from paragraph-18 of the cross-examination that the girls have
disclosed that they were being carried to Delhi by giving allurement to
provide appointment.
10. This Court, in that view of the matter, is of the view that victims who are
the material witnesses, have not been examined, as such, the appellant has
been able to make out a prima facie case for suspension of sentence coupled
with the fact that the sentence of identically placed co-convict, namely,
Dhiraj Prasad @ Ishwari Prasad, has already been kept in abeyance vide
order dated 10.08.2023 passed in Cr. Appeal (DB) No. 261 of 2023,
therefore, this Court sees no reason to take different view.
11. The law is well settled that after conviction, there is no presumption of
innocence but if the prima facie case is there for suspending the sentence,
the sentence is required to be suspended.
12. Considering the aforesaid fact, this Court is of the view that the sentence in
connection with Sessions Trial No. 41 of 2016 arising out of Telaiya P.S.
Case No. 32 of 2015 corresponding to G.R. No. 135 of 2015, deserves to be
suspended.
13. Regard being had to the facts and circumstances, the instant interlocutory
application stands allowed.
14. Accordingly, the appellant, Mahesh Yadav, is directed to be released on
bail during pendency of appeal on furnishing bail bond of Rs. 25,000/-
(Twenty-Five Thousand only) each with two sureties of the like amount, to
the satisfaction of the Additional Sessions Judge-II, Koderma in Sessions
Trial No. 41 of 2016 arising out of Telaiya P.S. Case No. 32 of 2015
corresponding to G.R. No. 135 of 2015.
15. 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.
16. In view thereof, I.A. No. 2634 of 2023 stands disposed of with the aforesaid
observation and direction.
Cr. Appeal (DB) No. 261 of 2023:
17. Office is directed to prepare and supply the paperbook.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
