Jharkhand High Court
Amitabh Dutta vs The State Of Jharkhand on 18 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.43 of 2025
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Amitabh Dutta, aged about 57 yrs, Son of Late Ajit Kumar Dutta, R/o
Siddhi Apartment, Devi Para, Hirapur, P.O. & P.S. Saraidhela,
District-Dhanbad, Jharkhand (826001)
.... .... Appellant
Versus
1. The State of Jharkhand
2. Xxx .... .... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Prakhar Harit, Advocate
For the State : Mr. Manoj Kr. Mishra, A.P.P.
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09/Dated: 18.03.2025
I.A. No.13890 of 2024
1. The instant interlocutory application has been filed under
Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for
suspension of sentence dated 19.11.2024 passed by the learned
Special Judge-POCSO Act, Dhanbad in Special (POCSO) Case
No.62 of 2022, in connection with Bankmore P.S. Case No.311 of
2021, whereby and whereunder, the appellant has been sentenced
to undergo R.I. for 20 years along with fine of Rs.10,000/- for the
offence under Section 6 of the POCSO Act and in default of payment
of fine, he shall further undergo one month additional imprisonment.
2. It has been contended by Mr. Prakhar Harit, learned counsel
for the appellant that the entire prosecution version even if taken to
be correct then also no case either of Section 376 of the IPC or
Section 6 of the POCSO Act is being made out. The said submission
has been made on the basis of the fact that the testimony of the
victim, who has been examined as P.W.1, cannot be said to be
trustworthy, reason being that, she although has stated about the
commission of sexual assault/rape, but her testimony itself is
contradictory and as such, merely on the basis of testimony of P.W.1,
the victim, the conviction cannot be said to be proper.
3. It has been contended that even the age of the prosecutrix
cannot be said to be established in pursuance to the provision of law
as provided under Section 94 of the Juvenile Justice Act, 2015.
4. It has further been contended that the age of the victim has
been assessed to be age of seventeen years but if the entire
testimony will be read out including the testimony of Doctor, P.W.3
who has examined the victim, then, it would be evident that the age
of the victim, cannot be said to be conclusively proved.
5. The argument has been advanced that the learned Trial Court
has not taken into consideration the plea of not residing in the
Apartment where the occurrence has been said to be committed,
rather, the document has been appended by way of defence
document showing therein the agreement which the appellant has
taken for the purpose of living in the rental house at Ranchi, but even
the same has not been taken into consideration. The Doctor has also
not found any injury.
6. The further ground has been taken that even the fact about
abortion which has been said to be taken place in the Matri Sadan
Hospital, cannot be said to be conclusively proved, since, no cogent
document has been brought by the prosecution to establish the fact
that the victim was subjected to abortion in the said nursing home.
7. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that it is therefore a fit case for suspension of
sentence.
8. While on the other hand, Mr. Manoj Kr. Mishra, learned APP
appearing for the respondent-State has vehemently opposed the
prayer for suspension of sentence.
9. It has been contended by referring to the testimony of P.W.1,
the victim, who all along has supported the prosecution version.
10. It has been submitted by referring to the statement recorded
under Section 164 of the Cr.P.C., wherein also, the victim has fully
supported the prosecution version and she remained consistent in
her examination/cross-examination.
11. So far as the issue of age is concerned, the same cannot be
said to be not conclusively proved, reason being that, the same has
been dealt with by the learned Trial Court at paragraph-30, wherein,
the age of the victim has been found to be less than eighteen years
based upon the certificate issued by the School which has been
marked as Ext.P-5/1/C.W.1, which has been proved by Author of the
said document, who has been examined as C.W.1.
12. It has been contended that the victim has been subjected to
rape and she was also subjected to abortion for more than thrice and
to that effect, the testimony of P.W.3, the Doctor is in support.
13. Learned State Counsel, based upon the aforesaid grounds,
has submitted that it is therefore not a fit case for suspension of
sentence.
14. We have heard the 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 along with other
exhibits, as available in the Trial Court Records.
15. This Court, in order to appreciate the arguments advanced on
behalf of the parties, has considered the issue of assessment of age
of the victim.
16. We are conscious that assessment of age is to be based upon
the provision of Section 94 of the Juvenile Justice Act, 2015.
17. The material as available in the Trial Court Records suggest
that the age of victim has been assessed to be 17 years. The
learned Trial Court has considered the issue of age based upon the
certificate issued from the school, which has been marked as Ext.P-
5/1/C.W.1. C.W.1 is the Author of the said certificate. The basis of
issuance of said certificate was the attendance register and the
transfer certificate.
18. This Court, therefore, is of the view that it cannot be said that
the issue of age has not conclusively been proved if it is based upon
the admission register of the school where the victim was said to
study in the said School upto Class-VII.
19. Adverting to the merit of the case regarding the culpability said
to be committed by the present appellant, this Court has considered
the testimony of P.W.1, the victim. Prior to that, this Court has also
considered her statement recorded under Section 164 of the Cr.P.C.
and found that the prosecution version has fully been supported. The
said statement has also been supported by the victim, P.W.1 in her
examination-in-chief and she remained consistent in her cross-
examination.
20. We, after going through the fact in entirety, have found that
each and every aspect of the matter has been deposed by her (the
victim) in course of trial. The other witnesses have also supported
the prosecution version, i.e., the P.W.2 (mother of the victim), P.W.3
(Doctor) and P.W.7 (Investigating Officer). We have also considered
the statement recorded under Section 313 of the Cr.P.C. and found
that no specific plea in his defence of false implication has been
taken.
21. This Court, considering the aforesaid fact, is of the view that
the appellant has not been able to make out a prima-facie case for
suspension of sentence.
22. Accordingly, the interlocutory application being I.A. No.13890 of
2024 stands dismissed.
23. 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.)
(Pradeep Kumar Srivastava, J.)
Rohit/-
