Jharkhand High Court
Raj Kishor Parida vs The State Of Jharkhand on 5 February, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal No. 43 of 2017
-----
(Against the judgment dated 08.12.2016 and order of sentence dated 09.12.2016
passed in G.R. (POCSO) Case No. 02 of 2014 arising out of Chhotanagra P.S.
Case No. 01 of 2014 by the court of Sri Manoj Kumar Singh, Additional
Sessions Judge-I, West Singhbhum at Chaibasa, Jharkhand)
Raj Kishor Parida --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
For the Appellant : Mr. Nishith Kumar Sahani, Advocate
Mr. Randhir Kumar Vishwakarma, Advocate
Ms. Shridhi Priya, Advocate
For the State : Mr. Rajneesh Vardhan, A.P.P.
PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
JUDGMENT
05.02.2024 This appeal is directed against the judgment dated 08.12.2016 and
order of sentence dated 09.12.2016 passed in G.R. (POCSO) Case No.
02 of 2014 arising out of Chhotanagra P.S. Case No. 01 of 2014 by the
court of learned Additional Sessions Judge-I, West Singhbhum at
Chaibasa whereby and whereunder the appellant has been convicted for
the offence punishable under sections 376/511 of the Indian Penal Code
and under Section 4/18 of the Protection of Children from Sexual
Offences Act ,2012 and has been sentenced to undergo R.I. for 5 years
with a fine of Rs.5000/- and in default of payment of fine, he has been
further directed to the undergo S.I. for 6 months under Section 376/511
of the I.P.C. No separate sentence has been awarded under Section 4/18
of the POCSO Act.
2. The prosecution story arose in the wake of written information
dated 10.01.2014 by P.W.10 addressed to the Officer-in-charge
Chhotanagara P.S. is as under:
On 09.01.2014 at about 07:30 pm. prosecutrix aged about 11
years while she was going from her house to answer the call of nature,
on the way her co- villager Raj Kishor Parida caught hold of her and
started taking her towards Machanghutu forest. The prosecutrix started
screaming to which the accused pressed her mouth and took towards the
forest with intention to kidnap her for committing rape, but, people came
there and saved the prosecutrix and took her to the house. It is further
stated that accused Raj Kishor fled away towards the forest, but people
saw him fleeing away in the light of moon. When the prosecutrix was
being rescued by nearby people, at that time her panty was displaced
towards thigh and, thereafter, prosecutrix narrated that the accused was
trying to commit rape with her, but, people came there in time, hence, he
couldn't succeed in committing the crime.
3. On the basis of written report of the informant Chhotanagra P.S.
Case No. 01/2014 dated 10.01.2014 under sections 363/376/511 of the
Indian Penal Code and under sections 4/6 of the Protection of Children
from Sexual Offences Act was registered against accused person namely,
Raj Kishor Parida and investigation of this case was taken by Assistant
Sub-Inspector of Police namely, Ram Krishna Murmu and after
completion of the investigation, Investigating Officer of this case has
submitted charge- sheet bearing no. 04/2014 dated 09.03.2014 against
the accused person namely, Raj Kishor Parida for the offence punishable
under sections 363/376/511 of the Indian Penal Code and under sections
4/6 of the Protection of Children from Sexual Offences Act,2012 on
11.03.2014 and on the same day cognizance has been taken against
above named accused person for the offence punishable under sections
363/376/511 of the Indian Penal Code and under sections 6/18 of the
Protection of Children from Sexual Offences Act,2012.
4. Thereafter the case was committed to the Special Court, POCSO
Act and charge was framed against the sole appellant for the offence
punishable under Section 376/511 IPC and under Section 6/18 of the
POCSO Act,2012 on 03.04.2014 to which the appellant pleaded not
guilty and claimed to be tried.
5. The learned court below after conducting the full-fledged trial
passed the impugned judgment of conviction and order of sentence,
which is under challenge.
6. Heard learned counsel for the appellant and the learned A.P.P. for
the State.
Arguments advanced on behalf of the Appellants:
7. At the outset it is submitted on behalf of the appellant that the
appellant does not want to argue this case on the point of judgment of
conviction i.e., on merit and therefore the argument on behalf of the
appellant is confined only on the point of sentence.
It is submitted on behalf of the appellant that the appellant has
been convicted for the offence punishable under Section 376/511 of the
IPC and under Section 4/18 of the POCSO Act,2012 and has been
sentenced to undergo R.I. for 5 years and a fine of Rs.5000/- with a
default sentence of S.I. for 6 months under Section 376/511 IPC and no
separate sentence was awarded under Section 4/18 of the POCSO
Act,2012.
8. It has further been submitted on behalf of the appellant that out of
the maximum sentence of 5 years, appellant has already remained in
custody for a substantive period of time i.e., for about 3 years 1 month
and 12 days from 11.01.2014 to 08.12.2016 in the pre-conviction period
and from 08.12.2016 to 22.02.2017 in the post-conviction period.
Further, it has been submitted that it is a case of attempt to sexual assault
and no actual offence has taken place and the appellant is said to be the
relative (son of the 'Phupha' of the victim P.W.2). It has further been
pointed out that P.W.3 (Alisa Bodra) is said to be the eye witness to the
occurrence but she has created a substantive doubt over the prosecution
story with respect to the alleged occurrence in view of the fact that she
has categorically stated in her examination in chief that at the time and
place of the occurrence when she was crossing while returning from her
maternal house, then she heard the noise from the bushes, upon which
she stopped there and saw that the victim came out from the bush but the
appellant did not come out from the bush. Later on Mangal Lohar and
Ram Singh Purty caught the appellant.
9. Further it has also been submitted on behalf of the appellant that
appellant is ready to pay the fine amount by way of compensation in
order to give it to the victim and therefore, it is urged on behalf of the
appellant that instead of awarding the sentence of imprisonment by
sending the appellant again in jail, appellant may be awarded sentence to
imprisonment for the period already undergone by him and further a
reasonable amount of sentence of fine may be imposed in order to give it
to the victim by way of compensation within the meaning of Section
4(3) of the POCSO Act
Arguments advanced on behalf of the State.
10. On the other hand learned A.P.P. appearing on behalf of the State
has opposed the contentions raised on behalf of the appellant and
submitted that it is a serious offence committed by the appellant and he
has been convicted for the offence punishable under Section 376/511 of
the IPC and Section 4/18 of the POCSO Act, 2012 and therefore, he does
not deserve any lenient view in awarding the sentenced. It is further
submitted on behalf of the State that there is no legal point to interfere in
the impugned judgment of conviction and order of sentence. However,
learned A.P.P. has not disputed the fact that appellant has already
undergone custody for substantive part of his punishment i.e., period of 3
years 1month 12 days against the maximum sentence of 5 years awarded
under Section 376/511 IPC.
Appraisal & Findings
11. Having heard the parties, perused the record of the case including
the LCR.
12. It is found that the appellant in this has been convicted for the
offence punishable under Section 376/511 of the IPC and under Section
4/18 of the POCSO Act and has been sentenced to undergo R.I. for 5
years with a fine of Rs.5000/- and in default of payment of fine, he has
been further directed to the undergo S.I. for 6 months under Section
376/511 of the I.P.C. No separate sentence has been awarded under
Section 4/18 of the POCSO Act, 2012. It is further found that learned
counsel for the appellant does not want to argue this case on merit i.e.,
on the point of judgment of conviction and confines his argument only
on the point of sentence. It is further found that the maximum sentence
awarded by the learned court below is of 5 years and the appellant has
already remained in jail for a substantive period of time i.e., 3 year 1
month 12 days. Further, it is found that appellant is ready to pay a
reasonable amount of fine by way of compensation in order to give it to
the victim (P.W.2).
13. In view of the aforesaid submissions advanced on behalf of the
appellant, it is found that it is a case of the year 2014 i.e., about 10 years
back. It is found just that no useful purpose would be served by sending
the appellant to jail again and therefore instead of awarding the sentence
of imprisonment, it is found just and proper that the purpose of justice
would be meted out if the sentence of fine is imposed instead of further
sentence of imprisonment.
14. Accordingly, this Court upholds the judgment of conviction dated
08.12.2016 passed in G.R. (POCSO) Case No. 02 of 2014 arising out of
Chhotanagra P.S. Case No. 01 of 2014 by the court of learned Additional
Sessions Judge-I, West Singhbhum at Chaibasa for the offence
punishable under Section 376/511 of the IPC and under Section 4/18 of
the POCSO Act, 2012 and alters the order of sentence dated 09.12.2016
under which the appellant is sentenced to undergo imprisonment for a
term of the period already undergone by him and further, in the interest
of justice, the sentence of payment of fine of Rs. 5000/- as imposed by
the learned trial court is enhanced to Rs.20,000/- (Rupees Twenty
Thousand only), to be paid by the appellant in order to give it to the
victim-P.W.2 by way of compensation.
15. Since the appellant is on bail and therefore, a time of three months
is given to the appellant to pay the aforesaid fine and in default of
payment of fine he is directed to undergo imprisonment for a period of 2
years. The appellant may deposit the fine amount through the Nazarat of
the concerned Civil Court in order to give it to the victim P.W.-2, by way
of compensation.
16. The learned trial court is directed to ensure that the said fine
amount is deposited within the stipulated period of time and if the same
is not deposited by the appellant, then he will serve the sentence as
awarded in case of default of payment of fine by taking all necessary
measures as per the provisions of law .
17. The appellant has been allowed to deposit the said fine amount
through the Nazarat of the concerned Civil Court and the moment
appellant deposits the fine amount, he shall be released and/ discharged
from the liabilities of bail bonds accordingly in this case.
18. The learned court below is also directed that on deposit of the said
fine amount by the appellant, a notice be sent to the victim P.W.-2 and on
her appearance the said fine amount, if so deposited by the appellant,
shall be disbursed to her after proper verification. In case, the said victim
is not traceable or not available or not found at the given address, or does
not appear before the court, the same shall be disbursed to the close or
near relatives or kith and kin of the said victim or else, as the concerned
learned trial court may deem fit and proper, and in this regard the court
concerned may also involve the Para Legal Volunteer (PLV) of District
Legal services Authority (DLSA), West Singhbhum at Chaibasa, if
required and the Secretary, D.L.S.A., West Singhbhum at Chaibasa is
directed to co-operate in this regard.
19. This Criminal Appeal is dismissed with modification in order of
sentence as above.
20. Let the Lower Court Records and the copy of judgment be also
transmitted to the learned Court below for its compliance in letter and
spirit.
(Navneet Kumar, J.)
A.Mohanty
