Jharkhand High Court
Niraj Kumar @ Niraj Singh Aged About 17 ... 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
Criminal Appeal (D.B.) No.1519 of 2024
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Niraj Kumar @ Niraj Singh aged about 17 years Son of Rajesh Singh
resident of Village-Ichak Kalan, P.O and P.S-Simariya, District-Chatra,
represented through his father Rajesh Singh son of Karu Singh, resident
of village-Ichak Kalan, Sabona, dunduwa, P.O & P.S-Simariya, District-
Chatra ... ... 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. Hemant Kumar Shikarwar, Advocate
For the Respondent : Mr. Shiv Shankar Kumar, APP
For the Informant : Mr. Ranjit Kumar, Advocate
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st
Order No.06/Dated: 21 August, 2025
1. The instant interlocutory application has been filed for keeping the
sentence in abeyance in connection with the judgment of conviction dated
21.08.2024 and order of sentence dated 27.08.2024 passed by the learned
Special Judge, Child Act-cum-Addl. Sessions Judge-1, Chatra in
connection with Child Act Case No.04 of 2022, whereby and whereunder,
the appellant has been convicted under section 4 of POCSO Act and
sentenced to undergo RI for 20 years and a fine of Rs.10,000/- for the
aforesaid act and in default of payment of fine further directed to undergo
SI for six months.
2. It has been contended on behalf of the applicant/appellant that it is a case
where the applicant/appellant has falsely been implicated without any
cogent material having been brought by the prosecution in course of the
trial.
3. It has been contended that merely on the basis of the suspicion and old
enmity between both the parties, the appellant/applicant has been dragged
in this case and subsequently, he has been convicted.
4. The submission has also been made that the case of prosecution has not
been supported by the prosecution witness, rather PW9 who is an
independent witness has not supported the prosecution case and, as such,
the prayer for suspension of sentence may be considered.
5. While on the other hand, the learned APP appearing for the respondent-
State of Jharkhand assisted by the learned counsel appearing for the
informant has vehemently opposed the prayer for suspension of sentence.
6. It has been contended that the allegation against the present
appellant/applicant is serious, since, it is the case of sexual assault to a
female child aged about 08 years at the time of occurrence.
7. The ground has been taken that the ingredients of section 4 of the POCSO
Act is substantiated by the prosecution by leading the evidence in this
regard which has also been corroborated by the medical evidence duly
supported by the victim who has been examined as PW6, her four years
old sister and the statement of the victim recorded under section 164
Cr.PC.
8. The learned counsel based upon the aforesaid grounds has submitted that
it is not a fit case for suspension of sentence.
9. We have heard the learned counsel for the parties and gone across the
findings recorded by the learned trial Court in the impugned judgment as
well as the testimony available in the lower Court records, as also the
materials exhibit as available therein.
10. We are conscious with the position of law that the prayer for suspension
of sentence in exercise of power conferred under section 389 (1) of the
Cr.PC parametria thereto under section 430(1) of BNSS, 2023 the prima-
facie case is to be seen and if it has been made out, then the sentence is to
be suspended on the premise that if there is likelihood of the acquittal on
the final hearing of the appeal, then why to compel the convict to remain
in the judicial custody.
11. However, it is equally settled position of law 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. 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, postconviction. 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."
12. Thus, it is evident from the aforesaid judgment, that during 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.
13. Now, we have proceeded to examine the factual aspect on the premise of
aforesaid settled position of law and have found that the age of the victim
was 8 years at the time of the occurrence and while sitting along with her
four years old sister, she was taken away by the appellant in a cowshed
and subjected to be molestation said to be attracted sexual assault as
provided under section 7 of the POCSO Act, 2012.
14. The aforesaid version of the victim has been corroborated by her four
years old sister who has been examined as PW7. The victim has given her
statement under section 164 Cr.P.C and the same has been corroborated
by the victim during her examination-in-chief/cross-examination in course
of the trial.
15. The appellant/applicant, in the defence, at the time of recording his
statement under section 313 Cr.P.C has failed to explain his innocence.
16. The learned trial Court based upon the provision as contained under
section 29 of the POCSO Act, 2012 has recorded its finding which is based
upon the reverse onus upon the person concerned against whom the
accusation has been made meaning thereby the principle of presumption
of innocence is not applicable.
17. It also appears that the doctor although has given his statement that there
is no sign of rape, rather it is a case of attempt to rape (sexual assault), but
we, after going through the testimony of the victim, i.e., PW6 together
with PW7-the sister of the victim aged about 04 years old, have found that
even on the statement recorded under section 164 Cr.P.C wherefrom it is
evident that they have supported the prosecution version with respect to
commission of rape.
18. This Court, considering the aforesaid fact and also taking into
consideration the fact that on earlier occasion the prayer for suspension of
sentence of the appellant/applicant by way of filing one interlocutory
application being I.A No.11045 of 2024 which has been dismissed after
some argument as not pressed by this Court vide order dated 04.02.2025,
is of the view that it is not a fit case for suspension of sentence.
19. Therefore, we are not inclined to enlarge the present applicant on bail by
suspending his sentence.
20. Accordingly, I.A. No. 9573 of 2025 stands dismissed.
21. 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.
22. In view thereof, I.A. No. 9573 of 2025 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Sudhir
