Jharkhand High Court

Jugal Korwa vs The State Of Jharkhand on 19 November, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (DB) No. 1036 of 2024
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Jugal Korwa                ...             Appellant
                            Versus
The State of Jharkhand            ...  ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant : Mr. Jitendra Shankar Singh, Advocate For the Respondent : Mr. Pankaj Kumar Mishra, A.P.P.

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th Order No. 10 : Dated 19 November, 2025

I.A. No. 13001 of 2025

Prayer:

1. The instant interlocutory application has been filed on

behalf of sole appellant under Section 430 of the BNSS, 2023

for suspension of sentence dated 20.01.2023 passed by the

learned Special Judge, POCSO Act at Garhwa in POCSO Case

No. 94 of 2021, whereby and whereunder the appellant has

been convicted for the offence under Sections 363, 376D IPC

and 6 of Protection of Children from Sexual Offences Act and

has sentenced to undergo life imprisonment and fine of Rs.

25,000/- under section 6 of the POCSO Act and has

sentenced him to undergo life imprisonment and fine of

Rs.25,000/- under section 6 of the POCSO Act and in default

of payment of fine he shall further undergo SI for 2 years.

Further he has been sentenced to undergo RI for 5 years and

fine of Rs. 10,000/- under section 363 IPC and in default of

payment of fine he shall further undergo SI for one year. All

the sentences shall run concurrently.

Prosecution case:

2. The prosecution story in brief as gathered from the

written application of the informant minor victim-girl aged

about 15 years (hereinafter referred to as prosecutrix) is that

on 12.07.2021 at about 7:00 a.m., accused Jugal Korwa

came and caught her hand and tried to take her away, but

any how she escaped herself, then again Jugal Korwa came

along with co-accused Suraj Singh and took her to jungle

where Suraj Singh raped her twice and taken her back to her

house and threatened not to disclose it anyone otherwise she

would be killed.

3. On the basis of the written application of the informant,

Bhandariya P.S Case No.-70/2021 dated 14.07.2021 u/s

376DA of the IPC and u/s 4 POCSO Act was registered

against two accused persons namely 1. Jugal Korwa and

2.Suraj Singh and after investigation, charge-sheet no.-

98/2021 dated 11.09.2021 for the offence u/s 376DA of the

IPC and u/s 4 POCSO Act was submitted against the two

accused persons namely 1.Jugal Korwa (A1) and 2.Suraj

Singh (A2) by the Investigating Officer, accordingly

cognizance of the offence u/s 376 of the IPC and u/s 4

POCSO Act, 2012 was taken.

4. On 11.02.2022, charges u/s 363, 366A, 376DA of the

IPC and u/s 4/6 of POCSO Act were framed against the

accused persons, which were read over and explained to

them in Hindi to which they pleaded not guilty and claimed to

be tried.

5. On 07.12.2022, prosecution evidence was closed and

statement of the accused persons u/s 313 Cr,P.C. was

recorded on the same day i.e. on 07.12.2022 to which they

have stated that they had committed no offence and claimed

to be innocent.

6. Accordingly, the evidence was adduced and the learned

trial court after hearing the parties passed the impugned

judgment of conviction and sentence.

7. The instant application has been preferred for

suspension of the sentence as aforesaid.

Submission on behalf of appellant:

8. Learned counsel appearing for the appellant has

submitted that earlier the appellant has filed I.A. No. 8063 of

2024, which was dismissed as not pressed vide order dated

03.12.2024, thereafter the present Interlocutory Application

has been filed renewing the prayer for suspension of

sentence.

9. Learned counsel for the appellant-applicant has

submitted that the prosecutrix, who has been examined as

P.W. 1, is all along inconsistent in her version. In the FIR, she

has stated that she has been taken in the forest by the

appellant, who left her there and co-accused Suraj Singh

committed rape upon her but in her deposition she has

stated that both the accused has committed wrong with her,

however, in her cross-examination she has again stated that

the appellant has not committed any wrong with her and

again upon cross-examination made by co-accused, Suraj

Singh, she has stated that Suraj has not committed any

wrong with her rather the appellant [Jugal Korwa] has

committed wrong with her. But the trial court has not taken

into consideration the aforesaid aspect of the matter.

10. Further submission has been made that though the

prosecution has made story that the prosecutrix has gone to

attend the marriage ceremony wherefrom she was forcibly

taken to forest but the factum of marriage has not been

proved.

11. The learned trial court has failed to appreciate that the

IO [PW 5] had made categorical statement that since the

prosecutrix has alleged about commission of rape upon her

by accused, Suraj Kumar and hence the blood samples of

only Suraj Kumar was sent for DNA test.

12. Further the doctor [PW 4] who has medically examined

the prosecutrix has neither found any injury upon her body

parts nor the recent proof of vaginal sexual intercourse,

which belies the factum of rape.

13. Further submission has been made that the appellant is

in judicial custody since 15.07.2021 i.e., for more than four

years.

14. Learned counsel for the appellant, based upon the

aforesaid ground, has submitted that the appellant may be

released on bail by suspending the sentence during pendency

of the instant appeal.

Submission on behalf of respondent-State

15. While on the other hand, learned APP appearing for the

State has vehemently opposed the prayer for suspension of

sentence. It has been contended that the allegation is serious in

nature, which has been proved, as such it is not a fit case for

suspension of sentence.

Analysis

16. We have heard learned counsel for the parties and gone

across the finding recorded by the learned trial Court in the

impugned judgment and the testimony of the witnesses as

available in the Lower Court Records.

17. Before adverting to the fact of the case it needs to refer

herein that, while exercising power of suspension of sentence

during pendency of appeal the Court has to see only the

prima-facie case.

18. The Hon'ble Apex Court in the case of Preet Pal Singh

vs. State of U.P., (2020) 8 SCC 645 has observed 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, which is a

fundamental postulate of criminal jurisprudence, and the

courts may be liberal, depending on the facts and

circumstances of the case, 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. For ready reference the relevant paragraph of

the aforesaid judgment is being quoted 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."

19. Thus, it is evident from the aforesaid judgment, that

during considering suspension of sentence which is the post-

conviction stage, the presumption of innocence in favour the

accused cannot be available and at this stage, the Court's

only duty is to see that the prima-facie case is made out or

not as such the detailed appreciation of evidence is not

required at this stage.

20. From perusal of testimonies of the witnesses, it is

evident that the prosecutrix, who has been examined as PW-1

has fully supported the case of prosecution that in the

marriage ceremony of her friend, after Bedai of her friend,

accused Jugal Korwa caught her hand and took her towards

forest and also called Suraj Kumar Singh and both the said

accused committed wrong act against her.

21. From perusal of cross-examination, separately made on

behalf of the accused Jugal Korwa and accused Suraj Kumar

Singh, the prosecutrix PW-1 has deposed at para-8 of her

cross-examination that only accused Jugal Korwa [appellant]

had committed wrong act against her subsequently at para-

13 stated that accused Jugal Korwa took her away, having

caught her hand and has committed wrong act against her.

22. From perusal of the evidence on record, it further

transpires that PW-2 mother of the prosecutrix and PW-3

father of the prosecutrix, who are hearsay witness to the

occurrence, have fully supported and corroborated the

evidence of the prosecutrix (PW-1) with regard to the

occurrence of gang rape committed against her when their

daughter [prosecutrix[ returned after attending the marriage

ceremony on the next day and narrated the occurrence of

taking away of her from the house of her friend to the forest

as well as commission of gang rape committed by the

appellant and co-accused.

23. Learned counsel for the appellant/applicant has mainly

taken the ground that the prosecutrix [PW 1] is not

consistent in her statement so far commission of rape is

concerned. Further ground has been taken that the

Investigating Officer [PW 5] had sent the only blood sample of

the accused Suraj Singh to FSL, Ranchi for DNA examination

as prosecutrix had stated that accused Suraj Kumar had

committed rape upon her and not the Jugal Korwa, therefore,

only the sample of Suraj Kumar was sent for forensic

examination. Referring to the testimony of doctor [PW 4]

submission has been made that the doctor has opined no

recent proof of vaginal sexual intercourse committed on the

prosecutrix.

24. So far as the ground of inconsistency in deposition of

prosecutrix [PW 1] is concerned, it is settled proposition of

law that minor discrepancy and inconsistency of the

testimony would not affect the case of the prosecution

particularly in a case for proving the guilt of the accused in

commission of gang rape, the prosecution has to establish

that there was meeting of mind of one or more accused

persons and they acted in concert in commission of crime of

rape with pre-arranged plan, prior meeting of mind and with

element of participation in action.

25. From perusal of testimony of witnesses, it is evident that

the appellant and co-accused with prior meeting forcibly took

the victim girl in the forest and thereafter committed offence

of rape upon the prosecutrix.

26. Admittedly, herein, the presence of both the accused

persons has not been denied. Furthermore, the identity of the

place of occurrence is also proved and established by PW-5,

Investigating Officer of this case. Therefore, the ground of

inconsistency in the testimony/version of the prosecutrix has

no leg to stand.

27. So far as ground that only the sample of co-accused

Suraj Kumar was sent to FSL, on the basis of statement of

prosecutrix by the I.O., it is settled proposition of law that for

proving the factum of rape only the statement of victim is

sufficient and in the case at hand, the prosecutrix has

categorically stated that the present appellant, Jugal Korwa

had also committed rape upon her. Therefore, the said

ground is also not sustainable.

28. It needs to refer herein that in the case of harwada

Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC

217 the Hon'ble Apex Court has observed that on principle

the evidence of a victim of sexual assault stands on par with

evidence of an injured witness. Just as a witness who has

sustained an injury (which is not shown or believed to be self-

inflicted) is the best witness in the sense that he is least likely

to exculpate the real offender, the evidence of a victim of a

sex offence is entitled to great weight, absence of

corroboration notwithstanding. And while corroboration in

the form of eyewitness account of an independent witness

may often be forthcoming in physical assault cases, such

evidence cannot be expected in sex offences, having regard to

the very nature of the offence. It has further been observed

that in the Indian setting, refusal to act on the testimony of a

victim of sexual assault in the absence of corroboration as a

rule, is adding insult to injury. Why should the evidence of

the girl or the woman who complains of rape or sexual

molestation be viewed with the aid of spectacles fitted with

lenses tinged with doubt, disbelief or suspicion, for ready

reference the relevant paragraph of the aforesaid judgment is

being quoted as under:

9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.

Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is

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to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile.

29. So far as the opinion of doctor in the testimony to the

effect that no injury is concerned, it is settled position of law

that in the case of rape, injury is not a sine qua non for

deciding whether rape has been committed but were

allegation is of rape by several persons and several times but

no injury is noticed then certainly it is an important factor.

30. In the case of Wahid Khan v. State of M.P., (2010) 2

SCC 9, it was observed and held by the Hon'ble Apex Court

as under:

20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn.) at p. 495 which reads thus:

"Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with

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emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.

21. Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, "sexual intercourse" has been defined as under:

"Sexual intercourse.--In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."

31. It is not case herein as per the testimony of the

prosecutrix that the rape has been committed several times.

Therefore, absence of injury in private part is not an essential

ingredient herein to prove the case of rape in the instant case

taking into consideration the version of the prosecutrix right

from lodging of the FIR, and till she deposed in court, had

been consistent on the point of taking her to forest by the

present appellant/applicant. She had further reiterated in the

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cross-examination that he present appellant has done wrong

act with her, as such the ground for suspension of sentence,

as has been taken by the appellant, is of no assistance to the