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2019 DIGILAW 1182 (JHR)

Johan Sawaiyan v. State of Jharkhand

2019-06-19

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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ORDER : Heard learned counsel Mrs. Pragati Prasad, appointed by Jharkhand High Court Legal Services Committee representing the appellants and the State on the prayer for suspension of sentence made through I.A. No. 3250 of 2019. 2. Both appellants stand convicted in connection with G.R.(POCSO) Case No. 04 of 2016 (arising out of Hatgamharia P.S. Case No. 03/2016) vide impugned judgment dated 16.07.2018 rendered by Additional Sessions Judge-I, West Singhbhum at Chaibasa and sentenced to undergo R.I for 5 years with a fine of Rs.10,000/- each with a default clause for the offences punishable under Section 363/34 of the I.P.C; R.I for 22 years and a fine of Rs.25,000/- each with a default clause for the offence punishable under Section 376D of the I.P.C./Section 6 of the POCSO Act and further R.I. for 2 years for the offence punishable under Section 506 of the I.P.C. by the impugned order of sentence dated 18.07.2018. 3. Learned counsel for the appellants submits that there is a delay of 6 days in the institution of the F.I.R. The date of occurrence is 04.02.2016 while the F.I.R was registered on 10.02.2016. Learned counsel for the appellant has relied upon the medical evidence of Dr. Divya Nishi (P.W.1), who has proved the injury report of the victim marked as Ext. 1 and 1/1. The doctor has not found any injury on the victim, external or on the private part. As per her statement, hymen was ruptured; introitus admits two finger and no bleeding. Age of the victim was assessed between 15 to 17 years and she was not found pregnant. However, surprisingly, the doctor has opined that sexual intercourse took place but again in cross examination, she denied having found any injury on the person of the victim. The prosecutrix, P.W.3 in her cross examination, has stated that fardbeyan was not read over to her when she inscribed her thumb impression and Munda and other villagers had coerced her to institute the case. Appellants are undergoing custody since 10.02.2016 itself (more than 3 years 4 months). As such they may be enlarged on bail upon grant of privilege of suspension of sentence during pendency of the appeal. 4. Learned counsel for the State has opposed the prayer. Appellants are undergoing custody since 10.02.2016 itself (more than 3 years 4 months). As such they may be enlarged on bail upon grant of privilege of suspension of sentence during pendency of the appeal. 4. Learned counsel for the State has opposed the prayer. He submits that the victim, a minor girl aged between 15 to 17 years was raped by 3 persons, one of whom was declared juvenile and is facing trial before the Juvenile Justice Board. Victim has categorically named the 3 accused persons including the two appellants of having committed rape upon her and disclosed the same in para 4 of her deposition also. Out of shame, she has not earlier instituted the case, but since it became widely known, she instituted the case after 6 days, which is the reason for delay. Due to delay in medical examination, possibly the sign of recent sexual intercourse or injury has not been found on the private part of the victim by the doctor, but the doctor has clearly opined that sexual intercourse took place. Appellants have remained in custody for only 3 years and 4 months against the sentence of 22 years awarded by the learned Trial Court under Section 376D of the I.P.C apart from other concurrent sentences under sections 363/34 and 506 of the I.P.C. Therefore, appellants do not deserve the privilege of suspension of sentence. 5. We have considered the submission of learned counsel for the parties and gone through the relevant material evidence relied upon from the Lower Court Record as well. Having regard to the evidence of the proxecutrix and the specific name of these two appellants along with another juvenile of having raped her and opinion of the medical expert Dr. Divya Nishi (P.W.1) corroborating the act of sexual intercourse on the victim aged between 15-17 years and that appellants have remained in custody for only 3 years 4 months till date against the sentence of 22 years under Section 376D of the I.P.C, we are not inclined to grant privilege of suspension of sentence to the appellants during the pendency of the appeal at this stage. Therefore, prayer made through I.A No. 3250 of 2019 is rejected. Consequently, I.A. No. 3250 of 2019 also stands dismissed. Application dismissed.