Jharkhand High Court
Fagu Mirdha @ Santosh Turi vs The State Of Jharkhand on 16 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 910 of 2024
With
I.A. No. 6686 of 2024
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Fagu Mirdha @ Santosh Turi, age-about 33 years, s/o Bharat Turi,
Resident of Village-Dakhanidih, P.O.-Sinduri, P.S. Narayanpur,
Dist.-Jamtara.
... ... 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. Lakhan Chandra Roy, Advocate
For the Respondent : Mrs. Lily Sahay, A.P.P.
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th
07/Dated: 16 October, 2024
I.A. No. 6686 of 2024:
1. The instant interlocutory application has been filed under Section
430 of the Bharatiya Nagrik Suraksha Sanhita, 2023 for keeping the
sentence in abeyance in connection with the judgment of conviction
dated 24.05.2024 and order of sentence dated 31.05.2024 passed by
the learned Special Judge POCSO, Deoghar in POCSO Case No.
23 of 2022 arising out of Sarath P.S. Case No. 34 of 2022, whereby
and whereunder, the appellant has been convicted and sentenced to
undergo rigorous imprisonment for 10 years along with fine of
Rs.20,000/- for the offence punishable under Section 376(1) of IPC
and in default of payment of fine, to undergo further R.I. for 02
year separately. The appellant has further been directed to undergo
rigorous imprisonment for 07 years, and to pay fine of Rs. 20,000/-
for the offence U/s- 363 of the Indian Penal Code and in default of
payment of fine, the convict is further sentenced to undergo R.I of
02 years separately. The appellant has further been directed to
undergo Rigorous Imprisonment for 10 years, and to pay fine of Rs.
20,000/- for the offence U/s- 4(1) of the POCSO Act 2019, and in
default of payment of fine, is further sentenced to undergo R.I of 02
years separately.
2. Learned counsel for the appellant has submitted that the
prosecution has miserably failed to establish the charge said to be
proved beyond all reasonable doubt reason being that it is a case of
improvement which is evident from bare perusal of the statement
recorded under Section 164 Cr.P.C. wherein there is no iota of
reference of commission of rape. However, in course of trial, the
victim has improved the case. But the learned trial court has not
taken into consideration the aforesaid aspect of the matter and
hence, it is a fit case where the sentence is to be suspended.
3. While on the other hand, Mrs. Lily Sahay, learned Additional
Public Prosecutor appearing for the respondent-State of Jharkhand
has vehemently opposed the prayer made in the instant
interlocutory application.
4. It has been contended that it is evident from the testimony of the
victim who has been examined as P.W.-6 who has supported the
prosecution version deposing therein that she was subjected to
physical assault.
5. Learned Additional Public Prosecutor, therefore, has submitted that
it is incorrect on the part of the appellant that the prosecution has
miserably failed to establish the charge.
6. We have heard the learned counsel for the parties and gone through
the finding recorded in the impugned judgment as also gone
through the testimony of the witnesses as available in the lower
court record.
7. This Court, in order to appreciate the argument advanced on behalf
of the appellant who has tried to make out a case of improvement
by drawing out attention to the first information report and the
statement recorded under Section 164 Cr.P.C., has gone through the
records.
8. It is evident from the imputation made in the First Information
Report which has been instituted on the basis of the report of the
father of the victim but there is no reference of the commission of
any rape or the victim has been subjected to any physical assault.
9. The victim immediately after institution of the FIR, has been
produced before the learned Judicia Magistrate for recording her
statement under Section 164 Cr.P.C. which has been appended as
Annexure-1 wherein also there is no disclosure about the
commission of any physical assault.
10. The victim has been examined as P.W.-6 where the victim has
changed her version from the statement recorded under Section 164
Cr.P.C. and has deposed that she had been subjected to rape.
11. The issue of rape has also not been corroborated by the evidence of
the doctor who has been examined as P.W.-8.
12. This Court, considering the aforesaid fact, is of the view that the
appellant has been able to make out a prima facie case for
suspension of sentence.
13. Accordingly, I.A. No. 6686 of 2024 stands allowed.
14. In consequence thereof, the appellant named above, is directed to
be released on bail on furnishing bail bond of Rs.25,000/- (Rupees
Twenty-Five Thousand) with two sureties of the like amount each
to the satisfaction of the learned Special Judge POCSO, Deoghar in
POCSO Case No. 23 of 2022 arising out of Sarath P.S. Case No. 34
of 2022.
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.
16. In view thereof, I.A. No. 6686 of 2024 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
