Jharkhand High Court
Suken Singh Sardar @ Sukhen Singh Sardar vs The State Of Jharkhand on 19 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1827 of 2023
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Suken Singh Sardar @ Sukhen Singh Sardar, Aged about 26 years,
Son of Jogeshwar Singh Sardar, Resident of Pure Silli, P.O. & P.S.
Chandil (Kapali), District-Seraikella-Kharsawan.
.... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mrs. Rashmi Kumar, Advocate
For the State : Mr. Vishwanath Roy, Spl. P.P.
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06/Dated: 19.02.2025
I.A. No.9748 of 2023
Per Sujit Narayan Prasad, J.
1. The instant interlocutory application has been filed under
Section 389(1) of the Code of Criminal Procedure, for
suspension of sentence dated 10.06.2022 passed by the
learned Special Judge, POCSO Act, Seraikella-Kharsawan, in
connection with POCSO Case No.52 of 2019, arising out of
Chandil P.S. Case No.106 of 2019, whereby and whereunder,
the appellant has been convicted for the offence under
Sections 323, 341, 342, 354, 354A, 354B read with Section 34
of the IPC, Sections 376-D, 395, 504/34 & 506/34 of the IPC
and Section 6 & 10 of the POCSO Act and sentenced to
undergo R.I. for life along with fine of Rs.20,000/- and in default
of payment of fine, he has further been directed to undergo S.I.
for two years, R.I. for six years along with fine of Rs.8,000/-
and in default of payment of fine, he has further been
sentenced to undergo S.I. for one year, R.I. for one year along
with fine of Rs.800/- and in default of payment of fine, he has
been directed to undergo S.I. for ten days . He has further been
sentenced to undergo S.I. for one month along with fine of
Rs.300/-/- and in default of payment of fine, he has to undergo
S.I. for three days.
2. He has further been sentenced to undergo R.I. for one year
along with fine of Rs.800/- and in default of payment of fine, he
has to undergo S.I. for ten days. He has further been
sentenced to undergo R.I. for four years along with fine of
Rs.5000/- and in default of payment of fine, he has to undergo
S.I. for six months and he has further been sentenced to
undergo R.I. for ten years along with fine of Rs.10,000/- and in
default, he has to undergo S.I. for one year and all the
sentences have been directed to run concurrently.
Factual Matrix
3. The case of the prosecution on the basis of written report of the
informant/victim, addressed to the Officer in-charge of Kapali
O.P. on 29.08.2019 alleging therein that she was aged about
17 years and 10 months. On 28.08.2019 at about 8:45 P.M.
she along with Arshdeep left Lalaji Hotel, Sakchi, Jamshedpur
in his Fortuner vehicle no. JH05CH0012 for Marine Drive,
Kapali Area and arrived there around 9:30 P.M. where
Arshdeep told her that his vehicle was not starting.
4. In the meantime, two persons arrived and very soon 10 more
persons also arrived there. They attempted to snatch the keys
of the Fortuner vehicle and she shifted to the second row of the
seat from the first row, out of fear. She has alleged that the
miscreants pulled her out and started to take her towards the
forest. She could hear the name of one boy named Munna who
was being called by other miscreants and claimed that she
could identify him. They dragged her towards the bushes near
the river where three accused sexually harassed and raped her
and the remaining accused persons outraged her modesty,
tortured and teased her.
5. She has further alleged that in that course they pulled and
threw her red coloured pantie with sanitary napkin. She has
claimed to identify all the accused who called someone on
phone to bring a bike and Maruti 800 car bearing registration
no. JH 05 1705 and BR 16 0048 respectively and dragged her
towards the car which was parked in the forest. She has
alleged that the miscreants thereafter left her near Tatanagar
Railway Station after crossing Shanti Nagar, Adityapur, P.M.
Mall Road, Bistupur and threatened not to disclose about the
above fact to any one otherwise she would be murdered.
6. They asked one auto driver to drop her home and the said auto
driver dropped her at Ghora Chowk, Jugsalai. She has further
alleged that the miscreants snatched her I-phone XR Model
fitted with SIM No. 8709648370 and had thrown the same in
the bushes.
7. On the basis of aforesaid written report of the informant
Chandil P.S. Case no. 106/19 was registered under Section
341, 323, 376 D, 354 B, 34 of I.P.C. and Sec. 4, 8 of the
Protection of Children from Sexual offences Act, (Pocso Act in
short) against the accused namely Munna and 11 other
accused on 29.08.2019.
8. On completion of investigation, the I.O. submitted charge-
sheet for the offence punishable under Sections
323/341/342/354/354A/354B/376D/395/366A/504/506/34 of
I.P.C. and under Sections 5/6/9/10 of POCSO Act against the
accused, namely, Ramesh Kumar @ Pintu, Sadhu @
Brindaban Kumhar, Virendra Mahali @ Fuchhi, Parsuram
Mahali, Ramesh Kumar, Mahadev Kumhar, Rajesh Kumar
Das, Sukhen Singh Sardar, Maheshwar Singh Sardar,
Badrinath Singh Sardar, Sanyasi Das and Gunadhar Mahali on
the basis of which Cognizance for the offence Under Section
323/341/342/354/354A/354B/376D/395/366A/504/506/34 of
I.P.C. and Sec. 6 and 10 of the (POCSO Act) was taken by the
Ld. Special Judge, POCSO Act.
9. In order to substantiate the prosecution case, prosecution has
examined altogether thirty-one witnesses and the learned trial
court after appreciation of evidence has found the charges
levelled against the present applicant along with other accused
proved beyond all reasonable doubts and accordingly, the
present applicant/appellant has been convicted and sentenced
as aforesaid.
10. 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.
Submission of the learned counsel for the appellant
11. It has been contended on behalf of the appellant that it is a
case where there is no cogent evidence said to come in
course of trial, basis upon which, the prosecution version has
been said to be proved beyond all reasonable doubts.
12. It has further been submitted that it is a case where the
prosecution has miserably failed to establish the charge in view
of the fact that there is contradiction in the testimony of the
witnesses.
13. It has been contended that the I.O. has stated to have seized
various articles including plastic disposal glass empty bottles of
beer, wrapper of chips etc. but the victim who also went to the
place of occurrence has not stated in her evidence regarding
seizure of the aforesaid articles from the place of occurrence in
her presence. When the evidence of the I.O. (P.W. 28) and the
victim (P.W. 5) will be taken into consideration, it is apparent
that the place of occurrence comes in serious doubt.
14. Learned counsel, based upon the aforesaid grounds, has
submitted that it is a fit case for suspension of sentence during
pendency of the appeal.
Submission of the learned Spl.P.P for the respondent-State
15. While on the other hand, Mr. Vishwanath Roy, learned Spl. P.P.
appearing for the respondent-State has vehemently opposed
the prayer for suspension of sentence.
16. It has been submitted that the prosecution has produced and
examined as many as 31 witnesses who have thoroughly and
consistently supported the facts of the occurrence on its
material point including the victim (P.W. 5) and her friend
Arshdeep (P.W. 3).
17. Further, it has been contended that the Medical Officer, P.W. 7
has opined that the bruises were found below the private part
of the victim at the time of examination and from this fact, the
case of prosecution has fully been substantiated.
18. It has also been contended that the other examined witnesses
of the prosecution though, not an eye witness of the
occurrence, have supported the facts of the case in toto and
the contradictions and inconsistency pointed out by the learned
counsel for the appellant are immaterial and does not go to the
root of the prosecution case.
19. It has been submitted that the victim as well as her friend has
identified the accused in course of Test Identification Parade
and have clearly disclosed the criminal act committed by them
including the present appellant during the commission of the
offence.
20. Learned State Counsel, based upon the aforesaid grounds,
has submitted that there is material available on record, based
upon which, the learned trial court has found the charge proved
beyond all reasonable doubts and hence, it is not a fit case for
suspension of sentence during pendency of the instant appeal.
Analysis
21. 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 also, the testimony of the witnesses
along with other exhibits, as available in the Lower Court
Records.
22. Before adverting to the facts of the instant case, it needs to
refer herein the settled position of law that the Court
considering an application for suspension of sentence is to
consider only the prima facie merits of the appeal.
23. Further, it is settled connotation 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, 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 and the principle of bail being the rule and jail an
exception is not attracted, if there is conviction upon trial.
Reference in this regard may be made to be 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 wherein at
paragraph 35 of the said judgment it has been held 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."
24. Now, adverting to the facts of the instant case, wherein, the
appellant has also been convicted for the offences under the
POCSO Act, therefore, it is utmost duty of this Court to go
through the finding of the learned trial court in order to find out
that what type of the reliable evidences have been considered
by the trial court on the point of implication of POCSO Act
against the petitioner/appellant.
25. The learned trial court has taken into consideration the content
of FIR, wherein, the victim girl who is informant of the case has
disclosed her age as 17 years and 10 months. Further, in her
statement under Section 164 Cr.P.C. dated 31.08.2019, she
has disclosed her age as 17 years. The prosecution has
produced the certificate of Central Board of Secondary
Education, 2018 (Ext.-6) of the victim girl wherein, her date of
birth has been mentioned as 07.10.2001 and based upon that,
learned trial court had determined the age of the victim below
18 years on the date of alleged occurrence.
26. The learned trial court has come to conclusive finding that on
the date of occurrence, victim was not a major, rather, a
minor/child in terms of Section 2(d) of the POCSO Act. Further,
it is evident from record that the defence on the other hand has
not been able to bring on record any material to disprove or
contradict the aforesaid fact.
27. Now, in the back drop of the aforesaid facts, it would be
pertinent to discuss the evidence adduced by the prosecution.
From perusal of the impugned order, it is apparent that the
prosecutrix (P.W. 5) has given a thorough account of the
occurrence in her evidence. From the testimony of the victim, it
is evident that She has categorically stated that there were
altogether 12 accused and three of them committed rape upon
her and rest of them assaulted, molested and outraged her
modesty. Her further statement is that at the time of rape some
of the miscreants had switched on the torch of their mobile
phones and she could able to see their faces.
28. It has come on record that shortly after the alleged occurrence
statement of the victim has been recorded under Section 164
Cr.P.C., wherein, she has narrated the entire occurrence and
by this statement also, the case of prosecution has fully been
corroborated.
29. Further, the P.W. 3 who is the friend of the victim, has clearly
supported the fact that miscreants arrived, assaulted him and
took out Rs. 2,000/- from his possession as well as one I-
phone and some of them dragged the victim out from the
vehicle and took her in the dark.
30. Further, the doctor (P.W.7) who has examined the victim after
the occurrence has opined that bruise is present below the
vaginal orifice and Tenderness is present in perennial region
and vagina however, she has opined that no definite opinion
about rape can be given and said that bruise is present below
vaginal orifice at the time of examination may be due to
admitted rape and further stated that all other injuries described
above are of within 24 hours.
31. Further, from paragraph-76 of the impugned order, it is evident
that victim has identified the present applicant/appellant in the
Test Identification Parade (TIP) as the person who had
molested and assaulted her.
32. Thus, on the basis of discussion made hereinabove, this Court,
is of the considered view that it is not a fit case for suspension
of sentence.
33. Accordingly, the interlocutory application being I.A. No.9748 of
2023, is hereby, rejected.
34. It is made clear that any observation made herein will not
prejudice the issue on merit as the appeal is lying pending for
its consideration.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Rohit/-
