Jharkhand High Court

Ajay Tudu vs The State Of Jharkhand on 1 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.90 of 2021
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Ajay Tudu                             ....   ...   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. Sanjaya Kumar Jha, Advocate Mr. Subhash Chandra Prakash, Advocate For the Respondent : Mr. Pankaj Kumar, P.P

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st Order No. 06/Dated 1 October, 2024

I.A. No.10602 of 2024

1. The instant interlocutory application has been filed

under Section 389 (1) of the Code of Criminal Procedure on

behalf of appellant Ajay Tudu, for suspension of sentence

during the pendency of the instant appeal after suspending

the impugned order of sentence dated 20.03.2021 passed

by the learned Special Judge (POCSO), East Singhbhum,

Jamshedpur in Special POCSO Case No. 29 of 2019 arising

out of Galudih P.S. Case No. 07 of 2019 whereby and

whereunder he has been convicted for the offence under

Sections 376 DA and 120(B) of I.P.C. and u/s 4/6 of the

POCSO Act and has been sentenced to undergo

imprisonment for life along with fine of Rs. 50,000/- for the

offence under Section 376 DA of the Indian Penal Code read

with Section 6 of the POCSO Act. Further he has been

sentenced to undergo Rigorous imprisonment for 10 years

along with fine of Rs. 5,000/- for the offence under Section

120(B) of the Indian Penal Code. All the sentences have

been directed to run concurrently.

2. Learned counsel for the appellant has submitted by

making out a case of false implication and that the

testimony of the witnesses has not been appreciated in

right perspective.

3. It has been contended that the very falsity of the

prosecution story is apparent from conduct of the victim

who, even after subjected to offence in the nature of Section

376 DA of the I.P.C., has kept herself mum for two days.

4. The ground has been raised by making reference of

the statement of the victim recorded under Section 164

Cr.P.C.

5. It has further been contended that even accepting

that the DNA has been matched, even then the same

cannot be a piece of evidence to convict the appellant,

since, it is the case of the prosecution that the appellant

along with the two other co-accused persons who have been

declared to be juvenile, have been implicated in the instant

case. Therefore, the corroborative evidence regarding the

DNA test is required to be there with respect to

substantiating the culpability of the present appellant in

the commission of crime.

6. Therefore, the evidence which has been led by the

prosecution and even the DNA test which has been

considered by the learned trial court, cannot be said to be

the substantive piece of evidence to convict the appellant.

7. Learned counsel, in view of the aforesaid, has

submitted that it is a fit case for suspension of sentence.

8. While on the other hand, Mr. Pankaj Kumar,

learned Public Prosecutor, has vehemently opposed the

prayer for suspension of sentence.

9. It has been contended that the statement so

recorded of the victim, who has been examined as PW-7, is

very specific.

10. It has also been submitted that she has remained

consistent in her cross examination.

11. The further submission has been made that her

testimony has been corroborated by the other witnesses,

i.e., her mother who has been examined as PW-6 and even

by the Doctor, who has been examined as PW-8, wherein

she has found ruptured hymen suggestive of the fact that

the victim was subjected to sexual intercourse.

12. The further submission has been made by making

reference of the DNA test report, marked as Ext.8/1,

wherein it would be evident from the finding so recorded at

paragraph-33(6) of the impugned judgment that the DNA

profile generated from the source of exhibit marked-E and

male DNA profile of exhibits-A, B & D are from one and

same human male source of origin.

13. Learned Public Prosecutor has further submitted

that the present interlocutory application is second, since

the earlier one, i.e., I.A. No.2404 of 2021, has not been

pressed as would appear from the order dated 28 th April,

2022.

14. Learned counsel appearing for the State, on the

basis of the aforesaid submission, has submitted that the

prayer of the appellant is fit to be rejected.

15. We have heard learned counsel for the parties, gone

across the Lower Court Records for the purpose of

considering the testimony of the witnesses as also the

finding so recorded by the learned trial court in the

impugned judgment.

16. The argument which has been advanced on behalf

of the appellant that there are major contradictions in the

testimonies of the witnesses, particularly, the conduct of

the victim has also been agitated by advancing the

argument that the victim remained mum for two days

which shows falsity of the prosecution story.

17. This Court has considered the testimony of PW-7,

the victim, wherefrom it is evident that the victim remained

consistent with her testimony even in the cross

examination.

18. Further, the question which has been raised

regarding falsity of the prosecution version since the victim

kept mum for two days, but there is no specific question

put to the victim.

19. The testimony of the victim has also been

corroborated by the mother. The age has also been taken

note, as would appear from the reference made thereto at

paragraph 28 of the judgment, based upon the date of birth

certificate, the age of the victim has been referred to as on

01.01.2006 and on the aforesaid basis, the victim was

assessed to be the age of 17 years as on 23.02.2019.

20. The aforesaid age has also been corroborated by the

radiological report.

21. The issue of age of the victim has not been

challenged by the appellant at any stage.

22. The learned trial court has also considered the

testimony of the Doctor who has been examined as PW-8.

The PW-8 has found the ruptured hymen, based upon that

opinion has been given that the victim was subjected to

sexual intercourse.

23. The prosecution has also sent the sample for DNA

test. The DNA test report has been marked as Ext.8/1

wherein the following observation has been made which

has been taken note of by the learned trial court as under

paragraph-33, for ready reference, the same is being

referred herein:-

"33 - In the DNA test report (Ext.-8/1), it has been observed that (1)-The DNA profile generated from the source of exhibit marked-A, marked-B and marked-D is a mixed profile from a human male and also from a human female source of origin.

(2) The DNA profile generated from the source exhibit marked-C is from a human female source of origin. (3)- The DNA profile generated from the source of exhibit marked-E is from a human male source of origin.

(4) The DNA profile generated from the source of exhibit marked-F is from a human male source of origin. (5)- The DNA profile generated from the source of exhibit marked-G is from a human male source of origin.

(6)-The DNA profile generated from the source of exhibit marked-E and male DNA profile of exhibits-A,B & D are from one and same human male source of origin. (7)- The female DNA profile generated from exhibits-A,B & D and DNA profile generated from exhibits marked-C are from one and same human female source of origin."

24. It is evident from the aforesaid report that the DNA

profile generated from the source of exhibit marked-E and

male DNA profile of exhibits-A, B & D are from one and

same human male source of origin.

25. It needs to refer herein that the DNA profile marked

as Ext.-E, is the blood sample of Ajay Tudu, the appellant.

26. This Court, considering the aforesaid facts, is of the

view that it is not a case where the sentence is fit to be

suspended.

27. Accordingly, the instant Interlocutory Application

I.A. No. 10602 of 2024 stands rejected.

28. The observation herein has been made prima facie