Jharkhand High Court
Shailendra Marandi vs The State Of Jharkhand on 25 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 824 of 2019
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Shailendra Marandi, aged about 21 years, son of Rasik Marandi, resident
of Village-Kodokicha, PO-Dumka, PS-Dumka (Muffasil), District-
Dumka, Jharkhand ....... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Pandey Neeraj Rai, Advocate
Mr. Rohit Ranjan Sinha, Advocate
Mr. Arpit Khandelwal, Advocate
For the Respondent : Mr. Vineet Kumar Vasistha, Spl.PP
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th
Order No.03/Dated: 25 March 2025
1. The instant interlocutory application has been filed under Section 430(1)
of the BNSS, 2023 for keeping the sentence in abeyance in connection
with the judgment of conviction dated 07.06.2019 and order of sentence
dated 10.06.2019 passed by the learned Additional Sessions Judge-II
from FTC Offences against Women, Dumka in connection with Sessions
Trial No.207 of 2017, whereby and whereunder, the appellant has been
convicted under sections 341/34, 342/34, 323/34, 376D/34, 387/34,
201/34 and 504/34 of the IPC and sentenced to undergo RI for life for
the offence under Section 376D/34 of the IPC and a fine of Rs.20,000/-
for the said offence and in default of payment of fine, further directed to
undergo RI for one year. He has been further sentenced to undergo SI for
one month under section 341/34 of the IPC, RI for one year under
section 342/34 of the IPC, RI for one year under section 323/34 of the
IPC, RI for seven years and a fine of Rs.5,000/- for the offence under
section 387/34 of the IPC and in default of payment of fine, further
directed to undergo RI for six months, RI for three years and a fine of
Rs.2,000/- under section 201/34 of the IPC and in default of payment of
fine, further directed to undergo RI for six month and sentenced to
undergo RI for two years under section 504/34 of the IPC. All the
sentences shall run concurrently.
2. It has been contended on behalf of the applicant that if the version of
entire prosecution witnesses will be taken together, no case under section
376D/34 of the IPC is said to be made out against the present appellant.
3. It has also been contended that there is no ingredient in the present case
against the appellant to attract section 376 D of the IPC as it has nowhere
come in the statement of the victim that the present appellant has
committed rape upon her. The further ground has been taken that the
appellant is in judicial custody for about 7 ½ years, and, as such, the
instant application has been filed for its consideration so that the
appellant may be released from judicial custody.
4. The learned counsel, based upon the aforesaid ground, has submitted that
it is a fit case for suspension of sentence.
5. While, on the other hand, Mr. Vineet Kumar Vasistha, learned Spl.PP
appearing for the respondent-State of Jharkhand has vehemently opposed
the prayer for suspension of sentence.
6. It has been contended by the learned Spl.PP that all together 11 convicts
are there in the present case. The prayers for suspension of sentence of
the co-convicts, namely, Subhash Hansda @ Subash Hansda, Alibinus
Hansda and Jay Prakash Hembrom have been rejected vide order dated
08.06.2022 passed in I.A No.801 of 2022 arising out of Criminal Appeal
(DB) No.739 of 2019 and prayers of bail of the co-convicts, namely,
Daniel Kisku @ Daniyel Kisku, John Murmu, Marshel Murmu @
Marsel Murmu, Saddam Ansari and Suraj Soren have been rejected vide
order dated 20.07.2021 passed in I.A No.7583 of 2019 arising out of
Criminal Appeal (DB) No.778 of 2019 by a co-ordinate Bench of this
Court.
7. It has been contended by the learned State counsel that the case of the
present appellant, as per the prosecution version, is also similar in nature,
since, the appellant was present at the place of occurrence and
attributability has been casted against him also as per the reference to
that effect given in the impugned judgment as would be evident from
Exihibit-21/1. It has been alleged that the appellant has touched the
victim with the ulterior motive and instigated the others in committing
rape upon her and also assaulted the victim.
8. It has been contended by the learned Spl.PP that the appellant has been
identified in TIP by the eye witness, namely, Arindam Sarkar who has
been examined as PW1 in the trial.
9. The learned State counsel has submitted that so far as the issue of period
of sentence of the appellant having been said to be completed more than
7 ½ years is concerned, the sentence has been awarded to the appellant
of RI for life and, as such, the period of custody cannot be said to be
sufficient for the purpose of suspension of sentence.
10. Based upon the aforesaid grounds, the learned State counsel has
submitted that it is not a fit case to release the appellant on bail by
suspending his sentence.
11. We have heard the learned counsel for the parties and gone across the
findings recorded by the learned trial Court in the impugned judgment,
the orders passed by the co-ordinate Bench of this Court while rejecting
the prayer for suspension of sentence of the co-convicts named above as
well as the testimony available in the lower Court records, as also the
materials exhibit as available therein.
12. It needs to refer herein that the co-ordinate Bench of this Court while
dealing with the prayer for suspension of sentence of the co-convicts,
namely, Daniel Kisku @ Daniyel Kisku, John Murmu, Marshel Murmu
@ Marsel Murmu, Saddam Ansari and Suraj Soren has passed elaborate
order by taking into consideration of all the witnesses, relevant is at
paragraph-5 of the order dated 20.07.2021 passed in I.A No.7583 of
2019 arising out of Criminal Appeal (DB) No.778 of 2019, for ready
reference the same is being referred hereinbelow as:
" 5. We have considered the submissions of learned senior counsel
for the appellants and learned Public Prosecutor and taken note of
the materials relied upon by them from the lower court records. On
consideration of the materials on record, it appears that the
statement of the victim (PW-13) who was admitted in hospital on
account of sexual assault for about 8-10 days along with the
statement of her friend (PW-1), identification of the appellants and
other accused persons in presence of the Judicial Magistrates (PWs-
15 & 16) by the victim as well as her friend (PW-1) coupled with
the evidence of the Medical Board showing sign of rape as also
recovery of the undergarments of the victim from the place of
occurrence along with hairpin, handkerchief together form the
material basis for convicting the appellants and others for the
offences of gang rape and other offences under the Indian Penal
Code. It further appears that the Appellant No. 1 has confessed his
crime which led to the recovery of knife used in threatening of the
victim and confession have also been made by the appellant John
Murmu and Saddam Ansari vide Ext.16 and 12 respectively. Taking
into consideration all these materials produced during the trial and
the manner of commission of gang rape upon the victim by the
appellants and other accused persons, we find no grounds made out
to enlarge the appellants on bail by suspending their sentence, at
this stage. Accordingly, I.A. No. 7583/2019 seeking suspension of
sentence is rejected."
13. So far as the issue of culpability committed by the appellant having been
proved by the prosecution is concerned, the appellant has been identified
in TIP by PW1, namely, Arindam Sarkar and against the present
appellant it has come that he was present at the place of occurrence and
committed rape upon the victim, instigated the others in establishing
physical relationship and also assaulted the victim.
14. This Court, therefore, is of the view that the case of the present
appellant, on the ground of his presence at the place of occurrence
having been identified by PW1 in TIP is at par with the case of the other
co-convicts, as referred in para-12 as above. Therefore, so far the issue
of merit is concerned the case of the present appellant is identical.
15. So far the issue of completion of period of custody is concerned, the
ground has been taken that the appellant has completed about 7 ½ years
in judicial custody, therefore, the present application has also been
considered on this ground also.
16. But this Court, considering the fact that the prosecution has been able to
prove the charge as per the discussion made above and, prayer of
suspension of sentence of identically placed co-convicts has been
rejected by a co-ordinate Bench of this Court vide order dated
20.07.2021 and, as such, is of the view that the sentence of the appellant
cannot be suspended merely on the ground of custody of 7 ½ years.
17. This Court, considering the aforesaid fact, is of the view that it is not a fit
case where the applicant is directed to be enlarged on bail by suspending
his sentence.
18. Accordingly, I.A. No.1998 of 2025 stands dismissed.
19. 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.
20. In view thereof, I.A. No.1998 of 2025 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
(Gautam Kumar Choudhary, J.)
Sudhir
