Jharkhand High Court
Simon Tikey vs The State Of Jharkhand on 23 January, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1275 of 2022
Simon Tikey --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mrs. Vani Kumari, Advocate
For the State : Mrs. Priya Shrestha, Spl.P.P.
Order No.06/ Dated 23rd January, 2024
I.A. No. 10230 of 2022
1. The present Interlocutory Application has been filed on behalf of
the appellant for suspension of sentence, during pendency of this
criminal appeal.
2. This criminal appeal is directed against the judgment of
conviction and the order of sentence dated 02.02.2022, passed by the
learned Special Judge (POCSO), Gumla in Spl. (POCSO) Case No. 343
of 2017, whereby and whereunder, the appellant has been convicted for
the offence under sections 376 of the Indian Penal Code and has been
sentenced to undergo imprisonment for life and fine of Rs. 10,000/-
under section 376 IPC with default stipulation of imprisonment of 6
months.
3. The learned counsel for the appellant Mrs. Vani Kumari has
submitted that the victim (P.W.2) was pressurized by her parents to lodge
a false case against the appellant. It is further submitted that in cross
examination the victim (P.W.2) has admitted having love affair with the
appellant. From the evidence of P.W.2 it seems that the case was lodged
only because there were some outstanding money issues.
4. Learned counsel for the appellant has further submitted that the
evidence of the doctor P.W.8 has been overlooked by the learned Court
below since the doctor during her medical examination of both the
victims has not assessed their age. In the absence of any such finding
and also in the absence of any documentary proof of the age of the
victim, no case under the POCSO Act can be made out against the
appellant. It is further submitted that seizure list witnesses have not been
examined, neither any official of the FSL where the seized articles were
sent for chemical analysis, have been examined. It has also been
submitted on behalf of the appellant that there is some inconsistency in
the version of the F.I.R and the evidence of the victim since it is not clear
as to whether the victim had gone with the other victim, who is the
informant.
5. Learned counsel for the appellant has further submitted that
offence of rape does not seem to be made out as per the evidence of the
doctor P.W.8 since the doctor opined that hymen was intact and there
was no penetrative assault upon the victim and therefore, based upon the
aforesaid circumstances, prayer for suspension of sentence may be
allowed.
6. Mrs. Priya Shrestha, the learned counsel for the State opposed the
prayer for suspension of sentence and has submitted that she has filed
objection and further submitted that as per SFSL report, the DNA profile
generated from Exhibit B1 and B2 is matched with DNA profile
generated from the blood sample taken from the convict Simon Tikey
(appellant herein). Further, the victim P.W.2 has also in her deposition
supported the prosecution case that the occurrence has taken place and
there were two persons at the place of occurrence and the same has been
corroborated by P.W.1 and therefore, under the circumstance the prayer
of the appellant for suspension of sentence may not be considered.
7. Having gone through the records of the case, considering the
arguments advanced by the learned counsel for the parties, under the
facts and circumstances of the case, we are not inclined the grant the
privilege of suspension of sentence to the appellant. Therefore, the
prayer for bail is rejected
8. Accordingly, I.A. No. 10230 of 2022 stands rejected and disposed
of.
( Ratnaker Bhengra, J.)
(Navneet Kumar, J.)
A.Mohanty
