Jharkhand High Court
Hariom Choudhari @ Hariom Choudhary vs The State Of Jharkhand on 8 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 836 of 2023
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1.Hariom Choudhari @ Hariom Choudhary
2.Mangita Devi @ Mangeeta Devi
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mrs. Rashmi Kumar, Advocate
For the Respondent : Mrs. Snehlika Bhagat, A.P.P
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th
Order No. 10 : Dated 8 January, 2024
I.A. No. 10910 of 2023
1. The instant interlocutory application has been filed
under Section 389 (1) of the Code of Criminal Procedure
on behalf of appellant, no. 1, namely, Hariom Choudhari
@ Hariom Choudhary, for suspension of sentence
during the pendency of the instant appeal after
suspending the impugned order of sentence dated
13.03.2023 passed by the learned Additional Sessions
Judge-II, Koderma in Sessions Trial No. 73 of 2022
arising out of Jainagar P.S. Case No. 2 of 2022 whereby
and whereunder the appellant no. 1 has been convicted
to go rigorous imprisonment for 5 years with fine of Rs.
10,000/- and in default of payment of fine further R.I.
for one year for the offence under Section 120(B); R.I. for
seven years with fine of Rs. 12,000 and in default of
payment of fine R.I. for 15 months for the offence under
section 366-A IPC and further R.I. for 14 years with fine
of Rs. 25,000/- and in default of payment of fine R.I for
two years under Section 370(4) IPC. All the sentenced
were directed to run concurrently.
2. It has been contended on behalf of appellant no. 1 that
he is innocent and has falsely been implicated in this
case if the statement of victim recorded under Section
164 Cr.P.C will be taken into consideration. It has
further been submitted, referring to the testimony of
victim (P.W. 2), that the prosecution version has not
been corroborated by the testimony of P.W. 2 even then
the trial Court without appreciating the aforesaid fact
has passed the impugned judgment of conviction and
order of sentence. Further contention has been raised
by referring to the testimony of P.W. 5 (mother) that she
has also not corroborated the prosecution version.
Furthermore, the P.W 6 (Investigating Officer) has also
not corroborated the prosecution version.
3. Learned counsel for the appellant no. 1 on the aforesaid
pretext has submitted that it is a fit case where
sentence is to be suspended.
4. While on the other hand, Mrs. Snehlika Bhagat, learned
A.P.P. appearing for the respondent-State has seriously
opposed the prayer for suspension of sentence on the
ground that P.W. 2 (victim) has fully supported the
prosecution version if statement under Section 164
Cr.P.C will be taken into consideration which has fully
been corroborated in the testimony as recorded by the
learned trial Court. It has further been submitted, by
countering the submission advanced by learned counsel
for the appellant that P.W. 5 has not fully supported the
prosecution version and by referring the testimony of
P.W. 5 submission has been made that mother has fully
supported the prosecution version. Further submission
has been made that the appellant has confessed his
guilt and on his pointing the girl has been recovered and
thereafter it was found that the concerned person
namely, Ram Kumar has solemnized marriage even
though victim was the age of 13 years at the time of
occurrence.
5. Submission has also been made, by reverting to the
argument advanced on behalf of appellant that
confession cannot be a substantive piece of evidence,
that it is not in dispute that confession has got no
evidentiary value but herein such confession has been
corroborated by the fact that on his disclosure the
victim has been recovered. Therefore, it is incorrect on
the part of the learned counsel for the appellant that it
is merely the confession rather confession has been
corroborated from other evidences and as such has got
evidentiary value.
6. We have heard learned counsel for the parties, gone
across the finding recorded by learned trial counsel as
also the documents available on record including
statement recorded under Section 164 Cr.P.C.
7. Before appreciating the argument advanced on behalf of
parties, this Court deems it fit and proper to refer herein
that co-convict, namely Mangita Devi @ Mangeeta Devi
has been directed to be released from judicial custody
after suspension of sentence by this Court vide order
dated 24.08.2023. The reason for referring the order
suspending the sentence of said Mangita Devi @
Mangeeta Devi, even though the same has not been
argued on behalf of learned counsel for the appellant, is
to deal with the case of present appellant. The said
Mangita Devi @ Mangeeta Devi was directed to be
released on bail, without entering into the merit of the
case, considering the fact that one three year child was
also suffering the confinement along with appellant no.
2 and further second daughter who is five years old was
living with her maternal grandfather and grandmother
and elder daughter who was nine years old died. Thus,
it is evident that case of the aforesaid appellant has not
been considered while considering the prayer for
suspension of sentence on merit rather only on the
ground of minor child was having with the aforesaid
appellant in judicial custody.
8. The case of the appellant no. 1 has been argued totally
on merit. Therefore, this Court has gone through the
issue on merit by considering testimony of the witnesses
particularly P.W. 2, the victim. It requires to refer herein
that the statement of P.W. 2 was also recorded under
Section 164 Cr.P.C. We have gone through the
statement recorded under Section 164 Cr.P.C. and
found therefrom that the victim has corroborated the
prosecution version. Further the said statement has
been corroborated by the victim, P.W. 2 in course of her
deposition before learned trial Court as under
paragraph 1, 2, 5 and 6. It further appears from the
statement made in cross-examination more particularly
at paragraphs 15, 16, 17 and 18 wherein she has
deposed that while she was being carried her mouth
was tied. She has further deposed that while she was
carried on bi-cycle she was kept in between the
appellant in the back portion of the said cycle. She has
further stated that when she tried to fled away from the
cycle then she was brutally beaten.
9. This Court has also considered the testimony of P.W. 5,
mother, who has corroborated the prosecution version.
Further testimony of Investigating Officer (P.W.6) has
also corroborated the prosecution version by referring
the statement of victim. Similarly, P.W. 1 has also
corroborated the prosecution version.
10. This Court, taking into consideration the testimony
of victim, statement made by her under Section 164
Cr.P.C and testimony of other witnesses, is of the view
that it is not a fit case to suspend the sentence of the
appellant no. 1.
11. Accordingly, the instant Interlocutory Application
I.A. No. 10910 of 2023 stands rejected and prayer for
suspension of sentence is hereby rejected.
12. The observation herein has been made prima facie
only for the purpose of consideration of suspension of
sentence and it will not prejudice the case of the
appellant since the appeal is lying pending before this
Court for its consideration.
13. Let a copy of this order be forwarded to the
appellant through Jail Superintendent.
14. The appeal will be listed in due course.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Alankar/
