Jharkhand High Court
Chandan Hansda @ Chandra Mohan Hansda vs The State Of Jharkhand on 24 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 97 of 2023
With
I.A. (Cr.) No. 6272 of 2024
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Chandan Hansda @ Chandra Mohan Hansda, aged about 28 years,
son of Laxman Hansda, resident of Village-Magurda, P.O. and P.S.
Toklo, Dist.- West Singhbhum, Jharkhand.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. S.T. Sajid, Advocate
For the Respondent : Mrs. Priya Shrestha, Spl. P.P.
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th
06/Dated: 24 October, 2024
I.A. (Cr.) No. 6272 of 2024:
1. The instant interlocutory application has been filed under section
389(1) of the Cr.P.C for suspension of sentence in connection with
the judgment of conviction dated 16.12.2022 and sentence dated
20.12.2022 passed in Spl. POCSO Case No.20 of 2020 arising out
of Toklo P.S. Case No. 0003 of 2020 by learned Additional
Sessions Judge-I-cum-Special Judge (POCSO) Act, West
Singhbhum at Chaibasa, whereby and whereunder, the appellant
has been convicted for the offence under Section 376D of IPC and
under Section 6 of POCSO Act and sentenced to undergo
imprisonment for life for the offence under Section 6 of POCSO
Act.
2. Learned counsel for the appellant has submitted that it is a case
where no ingredient of Section 376D of IPC is being attracted since
there is no case having been averred said to be made out of
commission of rape, against the appellant.
3. It has been submitted by referring to the prosecution version which
has also been corroborated by the testimony of the witnesses that
the appellant was sitting with pistol and giving threatening to the
victim as also directing the other co-convict, as such, there is no
ingredient of Section 376D of IPC in absence of any physical
relationship said to be made to establish the commission of rape
upon the victim.
4. Mrs. Priya Shreshtha, learned Special Public Prosecutor appearing
for the respondent-State has opposed the prayer for suspension of
sentence.
5. It has been submitted that on earlier occasion, the prayer was made
by filing interlocutory application being I.A. No. 821 of 2023
which had been withdrawn as not pressed and the present
interlocutory application is the second attempt.
6. She has submitted by referring to the provision as referred under
Section 376D of IPC and as per the same, it is incorrect on the part
of the appellant to take the ground that there is no case of Section
376D is being made out.
7. It has further been submitted by her that the appellant has rightly
been convicted in view of the second part of the reference so made
in the penal provision as under Section 376D of IPC wherein it has
been referred that facilitating the commission of crime will also
come under the purview of Section 376D of IPC in any manner.
Herein, the specific allegation which has been proved by
the prosecution and in consequent thereto, judgment of conviction
has been passed, is that the appellant was sitting with pistol and
threatening the victim and based upon the same, the victim was
subjected to rape by the group of persons.
8. Learned Special Public Prosecutor, based upon the aforesaid
ground, has submitted that it is not a case where the present
interlocutory application is to be allowed.
9. This Court has heard the learned counsel for the parties and has
gone across the finding recorded by the learned trial court in the
impugned order as also the testimony available in the lower court
record and the exhibits available therein.
10. This Court in order to appreciate the argument advanced on behalf
of the parties and ingredient of Section 376D is being made out or
not, has considered the contention of the said penal provision and
has found therefrom that the same is in two parts, i.e., first part is
the direct involvement in the commission of rape and second part is
that if anybody is facilitating the furtherance of the common
intention of commission of crime then also such person will come
under the fold of Section 376D of IPC.
11. This Court in order to examine the criminality committed by the
appellant has considered the prosecution version and the testimony
of the witnesses including the testimony of the victim who has been
examined as P.W.-1 and has found that the appellant was at the
place of occurrence along with pistol and it has come that he was
threatening the victim and in course thereof, the victim was
subjected to rape by the co-convicts.
12. This Court, therefore, is of the prima facie view that the offence as
has been found to be proved by the learned trial court said to be
committed under Section 376D of IPC, therefore, is being made
out, as such, it is not a fit case for suspension of sentence.
13. This Court, considering the aforesaid fact, is of the view that the
appellant has not been able to make out a prima facie case for
suspension of sentence.
14. Accordingly, I.A. (Cr.) No. 6272 of 2024 stands dismissed.
15. It is made clear that any observation made hereinabove will not
prejudice the case on merit, since, the criminal appeal is lying
pending before this Court for its consideration.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saurabh/-
