Jharkhand High Court
Bhushan Oraon @ Bhushan Pahan Aged About ... vs The State Of Jharkhand on 15 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.348 of 2021
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Bhushan Oraon @ Bhushan Pahan aged about 45 years
son of Lango Pahan r/o Village : Podha, PS: Bhandra
Gararpo District: Lohardaga. ... ... 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. Ranjan Kr. Singh, Advocate
: Mr. Jitendra Sharma, Advocate
For the Respondent : Mr. Vishwanath Roy, Spl. P.P.
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Order No. 05/Dated 15th October, 2024
I.A. No.453 of 2024
1. The instant interlocutory application has been filed
under Section 389(1) of the Cr. P.C for suspension of
sentence dated 16.08.2021 passed by the learned
Additional Sessions Judge-I -cum- Special Judge (POCSO)
Lohardaga in Special (POCSO) Case No.19 of 2020 arising
out of Bhandra P.S. Case No.27 of 2020, by which the
appellant has been sentenced and directed to undergo
imprisonment for life for the offence under Section 302 of
I.P.C., R.I. for ten years under Sections 458 and 364 of
I.P.C., R.I. for three years under Section 201 of I.P.C. and
imprisonment for life under Section 376 DA of I.P.C.
2. It needs to refer herein that one interlocutory
application being I.A. No.5216 of 2023 was filed which was
argued by Mr. Jitendra Sharma, learned Advocate on
Record. The same, after some argument, was withdrawn.
Thereafter the present interlocutory application has been
filed which is being argued by Mr. Ranjan Kumar Singh,
learned counsel in presence of Mr. Jitendra Sharma,
Advocate on Record.
3. Mr. Ranjan Kumar Singh, learned counsel arguing
for the appellant, has submitted that there is no evidence
against the appellant of commission of crime and he has
been convicted due to wrong appreciation of evidence.
4. It has further been contended that there is specific
allegation against one Anil Gope but the learned trial court
has not considered the aforesaid aspect of the matter and,
as such, the very finding recorded of conviction for
commission of offence under Sections 201, 302, 364, 458
and 376 DA of I.P.C. is not based upon the evidence
produced by the prosecution.
5. Based upon the aforesaid grounds, learned arguing
counsel for the appellant has submitted that it is a case
where the sentence is fit to be suspended.
6. While on the other hand, Mr. Vishwanath Roy,
learned Special Public Prosecutor, appearing for the State,
has submitted that similar prayer was made by filing
interlocutory application being I.A. No.5216 of 2023 and
after some argument, the said interlocutory application was
not pressed. The said order was passed by this Court on
16.08.2023 and thereafter the present interlocutory
application has been filed.
7. He has further submitted that the withdrawal of the
said interlocutory application does suggest that the
application was withdrawn when the Court was not
satisfied on the issue of merit.
8. So far as the issue on merit is concerned, it has
been contended by referring to the testimonies of PW-1,
wife of the deceased and PW-2 daughter of the deceased
and victim of commission of rape, who have identified the
present appellant, as would be evident from the testimony
so recorded at paragraph 4 of PW-1.
9. Learned Special Public Prosecutor, in view of the
aforesaid, has submitted that it is incorrect on the part of
the appellant to take the ground that he was not identified
by PW-1, rather, the present appellant was all along with
Anil Gope and that is the reason charge has been framed
under Section 376 DA of the I.P.C.
10. Learned State counsel, based upon the aforesaid
grounds, has submitted that it is not a case where the
sentence is to be suspended.
11. We have heard learned counsel for the parties and
gone across the finding recorded by the learned trial court
in the impugned judgment as also the testimonies of the
witnesses as available in the Lower Court Records.
12. We have already referred hereinabove that the
present interlocutory application is second one since the
first interlocutory application being I.A. No.5216 of 2023,
after some argument, was not pressed.
13. The prayer has been renewed by making reference
of the testimonies of the witnesses that none of the
witnesses have specifically attributed commission of crime
said to attract the ingredients either of Section 376 DA or
302 of the I.P.C. and other penal offences under which the
judgment of conviction has been passed.
14. According to the learned arguing counsel for the
appellant, the learned trial court has not appreciated the
evidence of witnesses properly and, as such, it is a fit case
where the sentence is to be suspended.
15. This Court, in order to appreciate this argument,
has gone through the testimonies of PW-1, wife of the
deceased and PW-2 daughter of the deceased who was
subjected to rape.
16. It is evident from the testimony of PW-1, namely,
Bari Oraon, wife of the deceased, that she had seen three
persons in the premises of her house and all the three
persons had caught hold of her husband and thereafter her
husband was tied with one tree. She had been asked to
bring water and when she returned, she saw the dead body
of her husband lying there. His throat was cut and the eyes
were tied with red cloth (dupatta of her daughter).
17. She, in her statement recorded at paragraph-6, has
identified the accused, namely, Bhushan Oraon @ Bhushan
Pahan, the present appellant, however, she had not
disclosed the name of the appellant.
18. It has further been referred, as has been recorded at
paragraph 8, that when she had returned back from police
station, her daughter who has been examined as PW-2, has
stated that she was subjected to rape by Anil Gope.
19. It is further evident from the testimony of PW-1 that
she remained consistent in her cross examination.
20. PW-2 as also PW-6 both have supported the
prosecution version.
21. The FSL report has also supported the prosecution
version and further, the testimonies of the witnesses have
also been corroborated by the evidence of the Doctor.
22. This Court, after taking into consideration the
aforesaid facts, is of the view that it is not a case where the
sentence is to be suspended.
23. Accordingly, the prayer for bail of the appellant is
rejected.
24. The instant interlocutory application, I.A. No.453 of
2024, is accordingly, dismissed.
25. 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/
