Jharkhand High Court
Mithun Mahto @ Mithun Mahato Aged About ... 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 (DB) No. 819 of 2024
Mithun Mahto @ Mithun Mahato aged about 22 years son of Gopal Mahto,
resident of village Chirudih, P.O. Raigara, P.S. Barabazar, District Purulia, West
Bengal --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Laxman Kumar, Advocate
For the State : Mr. V.S. Sahay, A.P.P.
Order No.04/ 1st October 2024
I.A. No. 6106 of 2024
The instant interlocutory application has been filed for suspension
of sentence of the appellant under Section 389(1) of Cr.P.C., in
connection with the judgment of conviction dated 22.05.2024 and order
of sentence dated 27.05.2024 passed in POCSO Case No. 49 of 2022
arising out of Nagri P.S. Case No. 140 of 2021 by the learned A.J.C-IV-
cum-Special Judge, POCSO, Ranchi whereby and whereunder, the
appellant has been convicted for the offence punishable under Section
376 of the IPC and has been sentenced to undergo R.I. for 10 years and a
fine of Rs. 10,000 and in default of payment of fine, he shall further
undergo imprisonment for 6 months S.I.
2. Learned counsel for the appellant has submitted that although
charge was framed under 4/6 of the POCSO but in course of trial, since
the prosecution has failed to prove the juvenility of the victim and, as
such, the learned Trial Court has not found the charge said to be
substantive. Further, charge was also been framed under Section 366A of
the IPC against the appellant, however, since the learned Trial Court
having not found any ingredients to attract the aforesaid section,
appellant has been acquitted of the said charge. Learned counsel for the
appellant has further submitted that conviction is only under Section 376
IPC and as would evident from the testimony of the mother of the
victim, examined as P.W.2, it has been admitted by her about the love
affair of the victim with the appellant but subsequently died in course of
getting treatment and as such, it is a case of consensual physical
relationship, but the aforesaid aspect of the matter has not been
appreciated by the learned Trial Court.
3. Though opportunity has been given to learned counsel for the
State to make his submission orally, since prayer has not been made to
file an affidavit in objection.
4. This Court has heard the learned counsel for the parties and gone
across the testimonies of the witnesses as available in the L.C.R. and
also gone through the findings rendered by the learned Trial Court in the
impugned judgment of conviction and order of sentence.
5. It is not in dispute that the prosecution has not been able to prove
the charge under Section 366(A) of the IPC and Section 4/6 of the
POCSO Act against the appellant and the conviction is under Section
376 of the IPC.
6. Argument has been advanced on behalf of the appellant that
ingredients of section 376 IPC is not available since there was no
forceful physical relationship between the victim and the appellant.
7. This Court, in order to appreciate the aforesaid ground has
considered the testimony of the mother of the victim P.W.2 who had
admitted about the consensual physical relationship on the basis of love
affairs between the victim and the appellant. The fact about pregnancy of
4 months has also not been disputed, which also establishes the fact of
consensual physical relationship.
8. The age of the victim has been considered to be 17 years but the
prosecution has not been able to prove the same, since the learned Trial
Court did not find the ingredient of section 4/6 of the POCSO Act. It
needs to refer herein that after the victim became pregnant she had gone
for medical treatment and in course of her treatment, she died.
9. Considering the aforesaid fact as revealed in the testimony of the
aforesaid witness, this Court is of the view that the appellant has been
able to make out a prima facie case in his favour and as such it is a fit
case where suspension of sentence is to be granted.
10. Accordingly, the appellant, above named, is directed to be
released on bail on furnishing bail bonds of Rs.25,000/- (Rupees
Twenty-Five Thousand) with two sureties of the like amount each to the
satisfaction of learned A.J.C-IV- cum-Special Judge, POCSO, Ranchi in
connection with POCSO Case No. 49 of 2022 arising out of Nagri P.S.
Case No. 140 of 2021.
11. It is made clear that any observation made hereinabove will not
prejudice the case of the parties on merit, since the criminal appeal is
lying pending before this Court.
12. In view thereof I.A. No. 6106 of 2024 is allowed and disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
A.Mohanty
