Jharkhand High Court
Pankaj Rajak @ Timan Baitha vs The State Of Jharkhand on 3 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.659 of 2023
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Pankaj Rajak @ Timan Baitha, aged about 28 years, Son of
Sri Sukhadi Baitha, Resident of Village - Hariharpur, P.O. -
Bhawnathpur (Hariharpur), Dist-Garhwa.
... ... 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. Santosh Kr. Tiwari, Advocate
For the State : Mr. Manoj Kr. Mishra, A.P.P.
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Order No. 04/Dated 3 May, 2024
I.A. No.3680 of 2024
1. This interlocutory application has been filed under
Section 389(1) of the Cr. P.C for suspension of sentence in
connection with order of sentence dated 28.03.2023 passed
by the learned Special Judge, POCSO Act, Garhwa in
POCSO Case No.88 of 2021 arising out of Bhawnathpur
P.S. Case No.28 of 2021, by which the appellant has been
sentenced and directed to undergo rigorous imprisonment
for life under Section 4(2) of POCSO Act with fine of
Rs.1,00,000/- and in default of payment of fine, further S.I.
for three years.
2. The learned counsel for the appellant has submitted
that it is a case where there is no cogent evidence said to
attract any of the ingredients under which the judgment of
conviction has been passed.
3. It has been submitted that even the victim has not
supported the prosecution version as also the other
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witnesses. Hence, the appellant has got prima facie case for
suspension of the sentence.
4. While on the other hand, Mr. Manoj Kumar Mishra,
learned APP appearing for the State, has vehemently
opposed the prayer for bail.
5. It has been contended that it is incorrect on the part
of the appellant to take the ground that there is no cogent
evidence which led the learned trial court to pass the
judgment of conviction.
6. It has been contended that the victim has supported
the prosecution version as also the other witnesses that is
PW-2, the informant, who is the grandfather of the
prosecutrix, PW-4 father of the prosecutrix and PW-5
maternal grandmother of the prosecutrix have also
supported the prosecution case.
7. It has been submitted that even the victim has
supported the prosecution version in the statement
recorded under Section 164 Cr.P.C. which has been
exhibited as P-6. The doctor has also corroborated the
commission of crime.
8. Learned State Counsel has submitted that the
learned trial court on the basis of the material available
against the appellant, since, has convicted the appellant,
hence it is not a case where the appellant will be said to be
able to make out a prima facie case for suspension of
sentence.
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9. We have heard the learned counsel for the parties,
gone across the testimony of the witnesses and other
material exhibits available on the lower Court record as
also the finding recorded by the learned trial court in the
impugned order.
10. It needs to refer herein that similar application was
filed, being I.A. No. 8154 of 2023, which was sought to be
withdrawn and as per the submission made to that effect,
this Court has allowed the said petition to be withdrawn
vide order dated 14.09.2023.
11. Thereafter, the present petition has been filed on
behalf of a new counsel, namely, Mr. Santosh Kumar
Tiwari.
12. The factual aspects as per the material available on
record needs to be appreciated in order to appreciate the
arguments advanced on behalf of the appellant who has
raised the ground that there is no evidence to attract the
culpability of the appellant.
13. This Court has perused the statement of victim
recorded under Section 164 Cr.P.C. which has been
marked as Exhibit P-6, wherein and whereunder the victim
who happens to be the age of 7 to 8 years has supported
the prosecution version by saying that she was taken out to
forest by this appellant and had opened her pajama and
was touching her and she does not know the name of the
said boy.
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14. The said version was supported by the PW-2, the
informant, who is the grandfather of the prosecutrix, PW-4
father of the prosecutrix and PW-5 maternal grandmother
of the prosecutrix. Even the doctor has supported the
prosecution version.
15. The argument has been advanced that the doctor
has not found any sign of intercourse but the doctor has
not denied that vaginal intercourse is there which is
sufficient to attract the penal offences under the POCSO
Act.
16. Regard being had to the facts and circumstances of
the case, this Court is of the view that the instant
interlocutory application is fit to be rejected.
17. Accordingly, the prayer for bail of the appellants is
rejected.
18. Accordingly, I.A. No. 3680 of 2024, is hereby
dismissed.
19. However, it is made clear that any observation made
herein will not prejudice the case on merit as the appeal is
lying pending for its consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Birendra/Samarth
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