Jharkhand High Court
Haliya Swanshi @ Satyanarayan Swanshi vs The State Of Jharkhand on 21 August, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1486 of 2024
with
I.A. No. 7523 of 2025
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Haliya Swanshi @ Satyanarayan Swanshi, aged about 25 years, son of
Sanatan Swanshi, resident of Village-Dumra, P.O. - Ulidih, P.S.-
Tamar, District- Ranchi.
... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Shiv Prasad Singh, Advocate
For the Respondent : Mr. Pankaj Kr. Mishra, A.P.P.
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Order No. 04/Dated:21.08.2025
Per Sujit Narayan Prasad, J.:
I.A. No. 7523 of 2025:
1. The instant interlocutory application has been filed under Section
430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for keeping
the sentence in abeyance in connection with the judgment of
conviction dated 28.09.2024 and order of sentence dated 30.09.2024
passed by the learned A.J.C.-IV-cum-Special Judge, POCSO, Ranchi in
POCSO Case No. 127 of 2022 arising out of Tamar P.S. Case No. 65 of
2022, whereby and whereunder, the appellant has been convicted
and sentenced to undergo Rigorous Imprisonment for 10 years
along with fine of Rs. 15,000/- for the offence punishable under
Sections 376(2) of IPC and in default of payment of fine, he has
further been sentenced to undergo further simple imprisonment for
6 months; and in view of Section 42 of the POCSO Act, 2012, no
separate sentence is being passed under Section 4 of the POCSO Act.
Factual Matrix:
2. The brief facts of the case as per the written report of the informant
is as under:
The victim has given a typed report to O/c Tamar P.S. on
26.07.2022 and stated therein that she is a poor minor girl aged
about 15 years and the appellant herein allured her and also gave
assurance to marry her and established physical relation with her
many times since last one year and the victim became pregnant
and gave birth to a female child. She demanded maintenance for
the said child, then the appellant refused to give any maintenance
for the said child and also refused to marry with the victim and
had also given threat to kill the victim and her child.
3. On the basis of the aforesaid written report, FIR being Tamar P.S.
Case No. 65 of 2022 was instituted and the police took up
investigation into the case and accordingly chargesheet was
submitted against the present appellant.
4. The Trial Court, after recording the evidence of witnesses,
examination-in-chief and cross-examination, recorded the statement
of the accused person and found the charges levelled against the
appellant proved beyond all reasonable doubts.
5. Accordingly, the appellant has been convicted and sentenced to
undergo Rigorous Imprisonment for 10 years along with fine of Rs.
15,000/- for the offence punishable under Sections 376(2) of IPC
and in default of payment of fine, he has further been sentenced to
undergo further simple imprisonment for 6 months; and in view of
Section 42 of the POCSO Act, 2012, no separate sentence is being
passed under Section 4 of the POCSO Act.
6. The instant interlocutory application has been preferred by the
applicant/appellant with the prayer for the suspension of sentence
during pendency of the instant appeal.
Arguments advanced by the learned counsel for the appellant:
7. It has been submitted by the learned counsel for the appellant that
on earlier occasion also, the appellant had moved before this Court
for suspension of sentence by filing I.A. No. 727 of 2025 which has
been dismissed as not pressed vide order dated 04.02.2025.
8. It has been further been contended that the DNA test done by the
FSL has come with the finding that the appellant is not a biological
father of the child born to the victim, but going against the report of
the FSL, the learned Trial Court arbitrarily has supposed that the
appellant is the biological father of the child born to the victim and
also the medical report has not proved the alleged offence of rape
against the victim.
9. Further, contention has been made that in the panchayati held by the
villagers, the victim herself had admitted before the villagers that
she was in love with another person and she wanted to get married
with that person.
10. Further, there is no documentary evidence on record to show that
the victim was minor at the time of alleged occurrence.
11. It has been contended that the appellant was languishing in judicial
custody since 27.07.2022.
12. Learned counsel for the appellant, on the aforesaid premise, has
submitted that, therefore, it is a fit case where the sentence is to be
suspended so that the appellant be released on bail.
Arguments advanced by the learned State counsel:
13. Per contra, learned Special Public Prosecutor appearing for the
respondent-State has vehemently opposed the submissions
advanced by the counsel for the appellant for grant of bail during
pendency of the appeal.
14. Further, submission has been made that the victim and her mother
have fully supported the case of prosecution and it has come in the
evidence that the convict, appellant herein, has established physical
relation with the victim many times on the false assurance of
marriage.
15. Learned Special Public Prosecutor, on the aforesaid premise, has
submitted that, therefore, it is not a fit case where the appellant
deserves the privilege of bail by suspension of sentence.
Analysis:
16. We have heard the learned counsel for the parties and have given
our anxious consideration to the submissions advanced at the bar
and have carefully gone through the finding recorded by the learned
trial court in the impugned judgment as also the testimony of the
witnesses and the material placed on record.
17. Admittedly on earlier occasion, the appellant/applicant had moved
before this Court for suspension of sentence by filing I.A. No. 727 of
2025 which has been dismissed as not pressed vide order dated
04.02.2025.
18. Before adverting into merit of the case it needs to refer herein that
there is difference between grant of bail in case of pre-trial arrest
and suspension of sentence, post- conviction. In the earlier case,
there may be presumption of innocence, which is a fundamental
postulate of criminal jurisprudence, and the courts may be liberal,
depending on the facts and circumstances of the case, however, in
case of post- conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of presumption
of innocence does not arise, reference in this regard be made to the
judgment rendered by the Hon'ble Apex Court in the case of Preet
Pal Singh vs. State of U.P., (2020) 8 SCC 645. For ready reference
the relevant paragraph of the aforesaid judgment is being quoted as
under:
"35. There is a difference between grant of bail
under Section 439 CrPC in case of pre-trial arrest and
suspension of sentence under Section 389 CrPC and grant of
bail, post conviction. In the earlier case, there may be
presumption of innocence, which is a fundamental postulate of
criminal jurisprudence, and the courts may be liberal,
depending on the facts and circumstances of the case, on the
principle that bail is the rule and jail is an exception, as held
by this Court in Dataram Singh v. State of U.P. [Dataram Singh
v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675]
However, in case of post-conviction bail, by suspension of
operation of the sentence, there is a finding of guilt and the
question of presumption of innocence does not arise. Nor is the
principle of bail being the rule and jail an exception attracted,
once there is conviction upon trial. Rather, the court
considering an application for suspension of sentence and
grant of bail, is to consider the prima facie merits of the
appeal, coupled with other factors. There should be strong
compelling reasons for grant of bail, notwithstanding an order
of conviction, by suspension of sentence, and this strong and
compelling reason must be recorded in the order granting
bail, as mandated in Section 389(1) CrPC."
19. Thus, it is evident from the aforesaid judgment, that while
considering suspension of sentence which is the post-conviction
stage, the presumption of innocence in favour of the accused cannot
be available and at this stage, the Court's only duty is to see that the
prima-facie case is made out or not and as such the detailed
appreciation of evidence is not required at this stage.
20. The learned counsel for the appellant has contended that the DNA
test done by the FSL has come with the finding that the appellant is
not a biological father of the child born to the victim, but going
against the report of the FSL, the learned Trial Court has convicted
the applicant/appellant. Further, it has also been contended that the
medical report has not proved the alleged offence of rape against the
victim and doctor who had examined the victim has opined that
there is possibility of consensual sex. Further, there is no
documentary evidence on record to show that the victim was minor
at the time of alleged occurrence.
21. Per contra learned APP has contended that admittedly as per the
report of DNA the accused/applicant Satyanarayan Swansi is not
biological father of female child born from the victim but it is not the
case that who is biological father of the child rather the victim who
has been examined as P.W.1 has specifically stated that on the
pretext of marriage the applicant/appellant has established sexual
relation with her. She had further stated that when sexual
relationship was established with her at that time she was at the age
of 15. It has further been contended that in the matter of POCSO
there is no meaning of any consent, reason being that the POCSO
Act is the Gender-Neutral Act and is meant only to take cases of child
etc.
22. In the backdrop of the aforesaid rival contention, it needs to refer
herein that to deal with the sexual offences of the child as per the
meaning of child as defined under section 2(1)(d) of the POCSO Act,
2012, the consent is also having no meaning as has been held by
Hon'ble Apex Court in the case of "X Vs. Principal Secretary,
Health and Family Welfare Department, Government of NCT of
Delhi and Another" reported in (2023) 9 SCC 433.
23. Thus, this Court is of the considered view that the meaning of
consent so far as the POCSO Act is concerned, is having no relevance.
The reason for such view is that if the consent would have any
relevance, then the question is that for what purpose the POCSO
Act has been legislated when the penal provision as under Section
376 IPC was already there when the POCSO Act, 2012 has been
notified.
24. It needs to refer herein that it is more than a decade that the
special Act (POCSO Act) is in operation and it is pertinent to note
that at the time of introduction of the POCSO Act, "age of consent" for
unmarried girl was 16 and it was presumed that any one below this
age cannot lawfully consent to sexual intercourse. The POCSO
Act raised the "age of consent" to 18 years and following the
recommendations of Justice J.S. Verma Committee, in the wake of a
gruesome incident, which took place in NCT, Delhi, Section 375 of
IPC was also amended by the Criminal Law (Amendment) Act, 2013.
25. As a consequence of the aforesaid provisions, an act of sexual
indulgence with a girl below 18 years, would attract the rigors of
the POCSO Act as well as the offence under Section 376 of IPC, and it
is being immaterial, whether it is a consensual relationship, as the
law presume that a girl below 18 years is not capable of consenting
to sexual intercourse and in such a scenario, even if a girl is below 18
years, consents to a sexual intercourse, her consent must be ignored
and the other party Shall be guilty of committing an offence under
the POCSO Act.
26. The POCSO Act deals with number of situations with regard to
sexual offence against children. The relevant factor such as
penetrated sexual assault as well as aggravated penetrated sexual
assault depends on nature of sexual assault, therefore, the consent of
minor, is immaterial.
27. The Hon'ble Apex Court in the case of Satish Kumar Jayanti Lal
Dabgar v. State of Gujarat, (2015) 7 SCC 359 has categorically
held that if the consent of minor is treated as a mitigating
circumstance, it may lead to disastrous consequences. For ready
reference the relevant paragraph of the aforesaid judgment is being
quoted as under:
"16. Once we put the things in right perspective in the manner
stated above, we have to treat it as a case where the appellant has
committed rape of a minor girl which is regarded as a heinous
crime. Such an act of sexual assault has to be abhorred. If the
consent of minor is treated as a mitigating circumstance, it may
lead to disastrous consequences. This view of ours gets strengthened
when we keep in mind the letter and spirit behind the Protection of
Children from Sexual Offences Act, 2012."
28. Further, in the case of X Vs. Principal Secretary" (supra), the
Hon'ble Apex Court has laid down that in the matter of POCSO Act,
consent has got no meaning. For ready reference the relevant
paragraph is being quoted as under:
"82. ----- The Protection of Children from Sexual Offences Act,
2012 ("the Pocso Act") is gender neutral and criminalises sexual
activity by those below the age of eighteen. Under the Pocso Act,
factual consent in a relationship between minors is immaterial. ----
-"
29. The Hon'ble Supreme Court in a recent case of "X (Minor) Vs. The
State of Jharkhand and Anr". reported in 2022 SCC OnLine SC
2373 has dealt with the issue of consent and has considered the
averment with regard to love-affair and relevant paragraph No.6 is
reproduced hereinafter :-
"6. The High Court was manifestly in error in allowing the
application for bail. The reason that from the statement under
Section 164 and the averments in the FIR, it appears that "there
was a love affair" between the appellant and the second
respondent and that the case was instituted on the refusal of the
second respondent to marry the appellant, is specious. Once, prima
facie, it appears from the material before the Court that the
appellant was barely thirteen years of age on the date when the
alleged offence took place, both the grounds, namely that "there
was a love affair" between the appellant and the second
respondent as well as the alleged refusal to marry,
are circumstances which will have no bearing on the grant of bail.
Having regard to the age of the prosecutrix and the nature and
gravity of the crime, no case for the grant of bail was established.
The order of the High Court granting bail has to be interfered with
since the circumstances which prevailed with the High Court are
extraneous in view of the age of the prosecutrix, having regard to
the provisions of Section 376 of IPC and Section 6 of POCSO."
30. On the basis of discussion made hereinabove, this Court is of the
view that since we are dealing with the case of minor, as such
consent has got no meaning in the instant case as we are to go by the
legal provision, particularly, in a case of POCSO Act.
31. In the backdrop of the aforesaid settled legal position this Court is
now adverting to the factual aspect of the instant case.
32. It is evident that the P.W.1, informant/victim has stated in her
examination-in-chief that the accused forcibly committed rape upon
her and has given assurance to marry her but he did not solemnized
marriage with the victim and gave assurance that he will firstly
construct his house then he will marry the victim. It is further stated
that the accused made physical relation with this victim, at that time
the victim was aged about 15 years. It is further stated that she told
her parents about the occurrence and also stated regarding the
occurrence to her sister and police and her mother got to know
about the occurrence after birth of the child. It is further stated she
called a panchayati but no one turned up.
33. The mother of the victim has been examined as P.W.2 who had fully
substantiated the statement of the victim. In para no.7 she has stated
that she identified a photograph which was filed by the prosecution
in which the accused and victim present with a girl child which is
marked "X" for identification.
34. The investigating officer of this case had been examined as P.W.3
and in his testimony, he has stated that the victim is aged about 15
years, thus from testimony of investigating officer it has been
established that the victim was minor at the time of the alleged
occurrence.
35. Admittedly herein as per the DNA report applicant/appellant is not
the biological father of victim's child but it is considered view of this
Court that herein the charge under Section 376(2)(n) of IPC has
been framed against the applicant/appellant, therefore it is not the
question herein that the appellant is biological father of the child of
victim or not rather the question herein that whether the victim was
subjected to rape by the appellant.
36. Herein admittedly the victim is aged about 15 years as per the
testimonies of the prosecution witnesses, thus, at the time of
occurrence her consent was immaterial because she was minor on
the date of occurrence and further the victim had fully supported her
case as per FIR and the testimony of P.W.1 victim has fully been
substantiated by the P.W.2.
37. Further it is evident from the impugned order/judgment that the
defence has not produced any evidence for rebutting the allegation
and presumption u/s 29 and 30 of POCSO Act and it goes against the
applicant and as per Section 29 of POCSO Act when a person is
prosecuted for committing or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or
attempted to commit the offence as the case may be unless the
contrary is proved. Thus, in the instant case, the presumption of
culpable mental state of the accused/applicant is discernable and he
also failed to rebut the presumption u/s 29 of the POCSO Act.
38. Further paternity of female child of the victim was not the subject
matter rather the accused/appellant had faced the trial for the
charge of rape under POCSO Act as well as under Section 376(2) (n)
of the IPC and the victim always stated before the court that accused
established physical relation with the her many times and further
herein at the time of alleged offence victim was minor, as such
consent has got no meaning under the POCSO Act.
39. On the basis of discussion made hereinabove, this Court is of the
view that it is not a fit case where the sentence is to be suspended
during pendency of the instant appeal.
40. Accordingly, the instant interlocutory application being I.A. No. 7523
of 2025 is hereby dismissed.
41. 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.
42. In view thereof, I.A. No.7523 of 2025 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
I agree,
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
A.F.R.
Samarth/
