Jharkhand High Court
Village- Nawadih vs The State Of Jharkhand on 26 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 41 of 2025
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Ashraf Ansari, aged about 25 years, son of Tahir Ansari, resident of
Village- Nawadih, P.O & P.S.- Kisko, District- Lohardaga;
... 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. Ashim Kr. Sahani, Advocate
: Mr. Ajit Kumar, Advocate
For the Respondent : Mr. P.K. Mishra, APP
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09/Dated: 26 March, 2025
th
I.A. No. 2130 of 2025
1. The instant interlocutory application has been filed for keeping the
sentence in abeyance in connection with the judgment of conviction
dated 11.12.2024 and order of sentence dated 12.12.2024 passed by
the learned Additional Sessions Judge-I, Lohardaga in Sessions Trial
No. 137 of 2023 arising out of Kisko P.S. Case No. 10 of 2023,
whereby and whereunder, the appellant have been convicted and
sentenced to undergo Rigorous Imprisonment for 20 years with a
fine of Rs. 20,000/- and in default of payment Imprisonment for one
month for the offence punishable under Section 376(2)(1) of the
Indian Penal Code.
2. The learned counsel appearing for the appellant has submitted that
the victim since is deaf and dumb and as such the aid of interpreter
has been taken while recording her testimony who has been
examined as PW-8.
3. It has further been contended that from the testimony of PW-8 that
it is evident that there is no ingredient of rape as defined under
Section 375 of the Indian Penal Code, therefore it has been disputed
by the PW-8 in her testimony wherein she had deposed that her
garments/undergarments have been taken out and she has been
pushed to the ground.
4. The appellant was also naked but there is no reference of
commission of rape by establishing the physical relationship by the
appellant with the victim.
5. The learned counsel, based upon the aforesaid ground, has
submitted that the testimony of PW-8 itself is not in support of the
prosecution version and as such it is a case where the sentence is to
be suspended during the pendency of the appeal.
6. While, on the other hand, Mr. P.K. Mishra, learned Additional Public
Prosecutor appearing for the State has vehemently opposed the
prayer for suspension of sentence.
7. This Court has heard the learned counsel for the parties, gone across
the material available on record, the testimony of witnesses in the
Trial Court Record, the other material exhibits and the DNA profile
which has been marked as Exhibit-P9.
8. The admitted fact herein is that the victim (PW-8) suffers from the
disability and she has been subjected to rape. The law is well-settled
in a case of where the victim is deaf and dumb and her testimony
have been interpreted by the interpreter having knowledge of sign
language, hence the testimony of other witnesses is required to be
taken into consideration.
9. This Court, based upon the aforesaid position of law, has considered
the testimony of PW-1, the mother of the victim, who has fully
supported the prosecution version as would be evident from
Paragraph 3 of her testimony.
10. It is evident from the testimony of PW 1 as recorded under Para 3
wherein she has specifically deposed that she rushed to place of
occurrence after hearing the sound of the victim (her daughter) and
she saw that the appellant was lying over her and the victim had no
apparel on her body.
11. She has further deposed that the mouth of the victim (her daughter)
was gagged and the victim was lying helpless.
12. Thereafter, the PW-1 took the appellant outside the house and called
her son, who has been examined as PW-2 and to whom PW-1
narrated everything and the same was reported to the Police and
thereafter, the seizure report was made.
13. The samples, as per the seizure report were sent to Forensic Science
Laboratory for DNA analysis.
14. It is evident from the DNA report, which is marked as Exhibit- P9
wherein the description of the source of exhibits were marked as
referred herein:
"Description of source of exhibit:
1. Blood positive panty cutting of victim marked- A.
2. Semen positive spots cuttings from pajama of victim marked-B.
3. Semen positive pajama cuttings of victim marked- B.
4. Blood positive gauze piece cuttings of accused marked- C.
5. Blood positive dupatta cuttings of victim marked- D."
15. The conclusion has been arrived by the Forensic Science Laboratory
wherein the sample taken from victim and accused were found to be
matched. For ready reference, the conclusion part is being referred
herein which reads as under:
"Conclusion:
The DNA test performed on the exhibits noted above is sufficient to
conclude that:
1. The DNA profile generated from the source of exhibit marked- A
(Source: Blood positive panty cuttings of victim), exhibit
marked- B (Source: Semen positive spots cuttings from pajama
of victim), exhibit marked- B [Male fraction] (Source: Semen
positive pajama cuttings of victim). and exhibit marked- D
(Source: Blood positive dupatta cuttings of victim) are mixed
profiles from more than one human sources of origin.
2. The DNA profile generated from the source of exhibit marked- C
(Source: Blood positive gauze piece cuttings of accused) is from
a human male source of origin which found to be present in the
mixed DNA profile generated from the source of exhibit
marked- B (Source: Semen positive spots cuttings from pajama
of victim).
3. The DNA profile generated from the exhibit marked- C (Source:
Blood positive gauze piece cuttings of accused) is also found to
be present in the mixed DNA profile generated from the source
of exhibit marked- B [Male fraction] (Source: Semen positive
pajama cuttings of victim) except single allele at locus vWA,
D185S1 and TH01."
16. This Court, considered the testimony of PW-1, which has been
corroborated by FSL report and merely because the victim has not
deposed about the ingredient to attract Section 375 where the aid of
the interpreter has been taken and further the evidences of other
witnesses are against the present appellant and considering the
aforesaid fact, is of the view that it is not a fit case where the
sentence is to be suspended.
17. 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.
18. Accordingly, the instant interlocutory application being I.A. No. 2130
of 2025, is hereby, rejected.
(Sujit Narayan Prasad, J.)
(Gautam Kumar Choudhary, J.)
Samarth
