Jharkhand High Court
Asraf Ansary vs The State Of Jharkhand on 21 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1397 of 2023
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Asraf Ansary, aged about 25 years, Son of Nuru Ansari,
Resident of Sukalda, Gosaidih, P.O., P.S. & District-
Purulia, West Bengal, Present Address : Sector-4/G,
Jhopdi, P.O. & P.S.-Sector-4, Bokaro, District-Bokaro,
Jharkhand. ... ... 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 : Mrs. Shilpi Sandil, Advocate
For the Respondent : Mrs. Nehala Sharmin, A.P.P.
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st
Order No. 10/Dated 21 October, 2024
I.A. No.8145 of 2023
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 15.03.2021 passed
by the learned District & Additional Sessions Judge-1st-
cum-Special Judge-cum-FTC, Bokaro in connection with
Special POCSO Case No.85 of 2019 corresponding to Harla
P.S. Case No.130 of 2019, by which the appellant has been
convicted under Section 376(3) of the I.P.C. and Section 6
of the POCSO Act and directed to undergo Rigorous
Imprisonment for 20 years with fine of Rs.1,00,000/- under
Section 376(3) of the Indian Penal Code.
2. Mrs. Shilpi Sandil, learned counsel appearing for
the appellant, has submitted by referring to the judgment
passed by the learned trial court that it is a case where the
appellant has falsely been implicated since it would be
evident from the appreciation of the testimonies of the
witnesses that it is a case of establishing physical
relationship with the consent of the victim and hence, there
is no ingredient of Section 6 of the POCSO Act.
3. It has also been contended by referring to the
testimony of the Doctor, who has been examined as PW-5,
who has not found any sign of sexual assault but without
examining the aforesaid aspect of the matter, the learned
trial court has convicted the appellant under Section 6 of
the POCSO Act and, as such, it is a fit case where the
sentence is to be suspended.
4. While on the other hand, Mrs. Nehala Sharmin,
learned Special Public Prosecutor, has vehemently opposed
the prayer for suspension of sentence.
5. It has been contended that since the appellant has
been convicted under Section 6 of the POCSO Act and it is
the admitted case herein that the victim was minor having
the age of 15 years and, as such, the consent will have no
meaning.
6. It has further been contended that the testimony of
the Doctor upon which reliance has been placed, even said
to be there, but even then the testimony of the victim will
prevail and further, the Doctor has examined the victim
based upon the police requisition dated 14.08.2019 while
the date of commission of sexual assault is dated
03.08.2019 and, as such, after lapse of such a long period,
there cannot be any sign of injury or traces of semen in and
around perineum, vulva.
7. It has been contended that even if the testimony of
the Doctor is accepted that no sign of injury or sign of
forceful intercourse is there then also the victim has been
assessed to be the age of 15 years based upon the
registration certificate of the concerned school wherein the
date of birth of the victim has been recorded as 03.01.2004.
8. Learned Special Public Prosecutor, based upon the
aforesaid ground, has submitted that it is not a case where
the appellant can be said to have established the prima
facie case for suspension of sentence.
9. We have heard learned counsel for the parties, gone
across the finding recorded by the learned trial court in the
impugned judgment as also the testimony of the witnesses
and the exhibits available in the L.C.R.
10. Learned counsel for the appellant has submitted
that it is a case of consensual physical relationship. The
question of consent so far as the POCSO Act is concerned
to apply either Section 4 or Section 6 thereof, will not be
available otherwise the very purpose of the POCSO Act will
be diluted. It is on the motion and presumption as per the
definition of the child as referred in the POCSO Act that the
child has no sense and hence, it is the duty of the major to
convince such minor (female herein) not to indulge in all
these things and that is the reason the provision of Section
29 has been inserted in the POCSO Act by laying down the
reverse onus upon the accused person.
11. The age of the victim has been assessed to be 15
years as per the registration certificate issued by the
Principal of Galaxy Public School and there is no challenge
to the same. The victim admittedly was minor at the time of
commission of occurrence who has fully supported the
prosecution version.
12. So far as the testimony of the Doctor is concerned,
the date of occurrence is said to be about one month prior
to the examination and, as such, the aforesaid examination
having not found any sign of injury or traces of semen in
and around perineum, vulva cannot be allowed to prevail
upon the testimony of PW-3, the victim.
13. This Court, considering the aforesaid, is of the view
that it is not a case where the appellant has been able to
prima facie satisfy this Court for suspension of sentence.
14. Accordingly, the prayer for bail of the appellant is
rejected.
15. The instant interlocutory application, I.A. 8145 of
2023, is accordingly, dismissed.
16. 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/
