Jharkhand High Court
Balwant Kumar Singh @ Chhoti @ Lucky vs The State Of Jharkhand on 24 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1507 of 2024
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Balwant Kumar Singh @ Chhoti @ Lucky
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Binod Kumar Dubey, Advocate
For the Respondent : Mr. Shiv Shankar Kumar, APP
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th
Order No. 06 : Dated 24 February, 2025
I.A. No. 796 of 2025
1. The instant interlocutory application has been filed on
behalf of appellant, under Section 430(1) of the BNSS, 2023
for suspension of sentence dated 30.9.2024 passed by
learned Additional Sessions Judge-cum-Special Judge,
Chatra in POCSO Case No. 17 of 2018 arising out of
Mayurhand P.S. Case No. 10 of 2018, by which the appellant
has been sentenced to undergo RI for 10 years with fine of
Rs. 40,000 for the offence under Section 366A, and in default
of payment of fine, he has been directed to undergo simple
imprisonment for 3 months; and further has been ordered to
undergo sentence of 05 (five) years of Rigorous Imprisonment
and fine of Rs. 20,000/- for the offence under Section 363
IPC and in default of payment of fine, the appellant has been
directed to undergo 45 (forty five) days of simple
imprisonment. Both the sentences have been directed to run
undergone concurrently.
2. The learned counsel for the appellant has submitted
that the even if the entire testimony of the victim, who has
been examined as P.W. 3 will be taken into consideration
then it would be evident that no case under Sections 366A or
363 IPC is made out against the appellant.
3. It has been contended that the date of birth as has been
said by the Investigating Officer, who has been examined as
P.W. 12, is 06.07.2001 as recorded in the Birth Certificate
but the said birth certificate was not marked as Exhibit.
4. It has further been contended that medical board was
constituted in which the age of the victim has been assessed
to be 17 to 19 years. Hence, the age since has not been
conclusively determined and as per the medical board the age
of the victim has been assessed to be 17 to 19 years, as such
the 19 years of age is to be taken into consideration therefore
the victim cannot be said to be minor.
5. Further from the testimony of the victim herself it is
evident that she went to many places on her own will and
returned safely and she did not deposed that any wrong has
been committed with her, therefore no offence under 366A or
363 IPC is made out against the appellant.
6. Learned counsel for the appellant based upon the
aforesaid grounds has submitted that it is a fit case for
suspension of sentence during pendency of the instant
appeal.
7. While on the other hand, learned APP appearing for the
State has vehemently opposed the prayer for suspension of
sentence.
8. 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 testimony of the witnesses as
available in the Lower Court Records.
9. This Court in order to appreciate the finding so recorded
by the trial Court in the impugned order has gone through
the testimony of witnesses so as to reach to the conclusion
with respect to the issue of age.
10. The Investigating Officer, who has been examined as
P.W. 12, has deposed that as per Birth Certificate, which has
been issued by the Principal of the concerned School, the
date of birth of the victim is 06.07.2001. Furthermore, with
respect to determination of age, the medical board was
constituted which assessed the age of the victim to be 17 to
19. Therefore, this Court is of the view that where two views
are available with respect to age, and further the date of birth
as referred in the birth certificate of the victim has been
referred by the Investigating officer [P.W. 12] in his deposition
is 06.07.2001, but the same was not marked as Exhibit, as
such the date of birth cannot be said to be conclusively
determined. In such circumstance, the date of birth recorded
in upper side is to be taken into consideration which is of 19
years
11. Further, from perusal of the testimony of victim, it is
evident that prima facie no ingredient of Section 363 of 366A
is made out.
12. Accordingly, the instant Interlocutory Application is
allowed.
13. In view thereof, the appellant, named above, is directed
to be released on bail on furnishing bail bond of Rs.10,000/-
(Rupees Ten Thousand only) with two sureties of the like
amount each to the satisfaction of learned District & Sessions
Judge-cum-Special Judge [POCSO], Chatra in POCSO Case
No. 17/2018 arising out of Mayurhand P.S. Case No.
10/2018.
14. It is made clear that any observation made hereinabove
will not prejudice the case of the parties on merit since the
appeal is lying pending for its consideration.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Alankar/
