IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.1827 of 2023 ------ Suken Singh Sardar @ Sukhen Singh Sardar, Aged about 26 years, Son of Jogeshwar Singh Sardar, Resident of Pure Silli, P.O. & P.S. Chandil (Kapali), District-Seraikella-Kharsawan. …. …. Appellant Versus The State of Jharkhand .... .... Respondent CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY PRASAD ------ For the Appellant : Mrs. Rashmi Kumar, Advocate For the State : Mr. Vishwanath Roy, Spl. P.P. ------ 06/Dated: 19.02.2025 I.A. No.9748 of 2023 Per Sujit Narayan Prasad, J. 1. The instant interlocutory application has been filed under Section 389(1) of the Code of Criminal Procedure, for suspension of sentence dated 10.06.2022 passed by the learned Special Judge, POCSO Act, Seraikella-Kharsawan, in connection with POCSO Case No.52 of 2019, arising out of Chandil P.S. Case No.106 of 2019, whereby and whereunder, the appellant has been convicted for the offence under Sections 323, 341, 342, 354, 354A, 354B read with Section 34 of the IPC, Sections 376-D, 395, 504/34 & 506/34 of the IPC and Section 6 & 10 of the POCSO Act and sentenced to undergo R.I. for life along with fine of Rs.20,000/- and in default of payment of fine, he has further been directed to undergo S.I. for two years, R.I. for six years along with fine of Rs.8,000/- and in default of payment of fine, he has further been sentenced to undergo S.I. for one year, R.I. for one year along with fine of Rs.800/- and in default of payment of fine, he has been directed to undergo S.I. for ten days . He has further been sentenced to undergo S.I. for one month along with fine of Rs.300/-/- and in default of payment of fine, he has to undergo S.I. for three days. 2. He has further been sentenced to undergo R.I. for one year along with fine of Rs.800/- and in default of payment of fine, he has to undergo S.I. for ten days. 2. He has further been sentenced to undergo R.I. for one year along with fine of Rs.800/- and in default of payment of fine, he has to undergo S.I. for ten days. He has further been sentenced to undergo R.I. for four years along with fine of Rs.5000/- and in default of payment of fine, he has to undergo S.I. for six months and he has further been sentenced to undergo R.I. for ten years along with fine of Rs.10,000/- and in default, he has to undergo S.I. for one year and all the sentences have been directed to run concurrently. Factual Matrix 3. The case of the prosecution on the basis of written report of the informant/victim, addressed to the Officer in-charge of Kapali O.P. on 29.08.2019 alleging therein that she was aged about 17 years and 10 months. On 28.08.2019 at about 8:45 P.M. she along with Arshdeep left Lalaji Hotel, Sakchi, Jamshedpur in his Fortuner vehicle no. JH05CH0012 for Marine Drive, Kapali Area and arrived there around 9:30 P.M. where Arshdeep told her that his vehicle was not starting. 4. In the meantime, two persons arrived and very soon 10 more persons also arrived there. They attempted to snatch the keys of the Fortuner vehicle and she shifted to the second row of the seat from the first row, out of fear. She has alleged that the miscreants pulled her out and started to take her towards the forest. She could hear the name of one boy named Munna who was being called by other miscreants and claimed that she could identify him. They dragged her towards the bushes near the river where three accused sexually harassed and raped her and the remaining accused persons outraged her modesty, tortured and teased her. 5. She has further alleged that in that course they pulled and threw her red coloured pantie with sanitary napkin. She has claimed to identify all the accused who called someone on phone to bring a bike and Maruti 800 car bearing registration no. JH 05 1705 and BR 16 0048 respectively and dragged her towards the car which was parked in the forest. She has alleged that the miscreants thereafter left her near Tatanagar Railway Station after crossing Shanti Nagar, Adityapur, P.M. Mall Road, Bistupur and threatened not to disclose about the above fact to any one otherwise she would be murdered. 6. JH 05 1705 and BR 16 0048 respectively and dragged her towards the car which was parked in the forest. She has alleged that the miscreants thereafter left her near Tatanagar Railway Station after crossing Shanti Nagar, Adityapur, P.M. Mall Road, Bistupur and threatened not to disclose about the above fact to any one otherwise she would be murdered. 6. They asked one auto driver to drop her home and the said auto driver dropped her at Ghora Chowk, Jugsalai. She has further alleged that the miscreants snatched her I-phone XR Model fitted with SIM No. 8709648370 and had thrown the same in the bushes. 7. On the basis of aforesaid written report of the informant Chandil P.S. Case no. 106/19 was registered under Section 341, 323, 376 D, 354 B, 34 of I.P.C. and Sec. 4, 8 of the Protection of Children from Sexual offences Act, (Pocso Act in short) against the accused namely Munna and 11 other accused on 29.08.2019. 8. On completion of investigation, the I.O. submitted charge- sheet for the offence punishable under Sections 323/341/342/354/354A/354B/376D/395/366A/504/506/34 of I.P.C. and under Sections 5/6/9/10 of POCSO Act against the accused, namely, Ramesh Kumar @ Pintu, Sadhu @ Brindaban Kumhar, Virendra Mahali @ Fuchhi, Parsuram Mahali, Ramesh Kumar, Mahadev Kumhar, Rajesh Kumar Das, Sukhen Singh Sardar, Maheshwar Singh Sardar, Badrinath Singh Sardar, Sanyasi Das and Gunadhar Mahali on the basis of which Cognizance for the offence Under Section 323/341/342/354/354A/354B/376D/395/366A/504/506/34 of I.P.C. and Sec. 6 and 10 of the (POCSO Act) was taken by the Ld. Special Judge, POCSO Act. 9. In order to substantiate the prosecution case, prosecution has examined altogether thirty-one witnesses and the learned trial court after appreciation of evidence has found the charges levelled against the present applicant along with other accused proved beyond all reasonable doubts and accordingly, the present applicant/appellant has been convicted and sentenced as aforesaid. 10. The instant interlocutory application has been preferred by the applicant/appellant with the prayer for the suspension of sentence during pendency of the instant appeal. Submission of the learned counsel for the appellant 11. It has been contended on behalf of the appellant that it is a case where there is no cogent evidence said to come in course of trial, basis upon which, the prosecution version has been said to be proved beyond all reasonable doubts. 12. Submission of the learned counsel for the appellant 11. It has been contended on behalf of the appellant that it is a case where there is no cogent evidence said to come in course of trial, basis upon which, the prosecution version has been said to be proved beyond all reasonable doubts. 12. It has further been submitted that it is a case where the prosecution has miserably failed to establish the charge in view of the fact that there is contradiction in the testimony of the witnesses. 13. It has been contended that the I.O. has stated to have seized various articles including plastic disposal glass empty bottles of beer, wrapper of chips etc. but the victim who also went to the place of occurrence has not stated in her evidence regarding seizure of the aforesaid articles from the place of occurrence in her presence. When the evidence of the I.O. (P.W. 28) and the victim (P.W. 5) will be taken into consideration, it is apparent that the place of occurrence comes in serious doubt. 14. Learned counsel, based upon the aforesaid grounds, has submitted that it is a fit case for suspension of sentence during pendency of the appeal. Submission of the learned Spl.P.P for the respondent-State 15. While on the other hand, Mr. Vishwanath Roy, learned Spl. P.P. appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence. 16. It has been submitted that the prosecution has produced and examined as many as 31 witnesses who have thoroughly and consistently supported the facts of the occurrence on its material point including the victim (P.W. 5) and her friend Arshdeep (P.W. 3). 17. Further, it has been contended that the Medical Officer, P.W. 7 has opined that the bruises were found below the private part of the victim at the time of examination and from this fact, the case of prosecution has fully been substantiated. 18. It has also been contended that the other examined witnesses of the prosecution though, not an eye witness of the occurrence, have supported the facts of the case in toto and the contradictions and inconsistency pointed out by the learned counsel for the appellant are immaterial and does not go to the root of the prosecution case. 19. 18. It has also been contended that the other examined witnesses of the prosecution though, not an eye witness of the occurrence, have supported the facts of the case in toto and the contradictions and inconsistency pointed out by the learned counsel for the appellant are immaterial and does not go to the root of the prosecution case. 19. It has been submitted that the victim as well as her friend has identified the accused in course of Test Identification Parade and have clearly disclosed the criminal act committed by them including the present appellant during the commission of the offence. 20. Learned State Counsel, based upon the aforesaid grounds, has submitted that there is material available on record, based upon which, the learned trial court has found the charge proved beyond all reasonable doubts and hence, it is not a fit case for suspension of sentence during pendency of the instant appeal. Analysis 21. We have heard the learned counsel for the parties and gone across the findings 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 Lower Court Records. 22. Before adverting to the facts of the instant case, it needs to refer herein the settled position of law that the Court considering an application for suspension of sentence is to consider only the prima facie merits of the appeal. 23. Further, it is settled connotation of law 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, 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 and the principle of bail being the rule and jail an exception is not attracted, if there is conviction upon trial. Reference in this regard may be made to be the Judgment rendered by the Hon’ble Apex Court in the case of Preet Pal Singh vs. State of U.P., (2020) 8 SCC 645 wherein at paragraph 35 of the said judgment it has been held as under: "35. Reference in this regard may be made to be the Judgment rendered by the Hon’ble Apex Court in the case of Preet Pal Singh vs. State of U.P., (2020) 8 SCC 645 wherein at paragraph 35 of the said judgment it has been held 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." 24. Now, adverting to the facts of the instant case, wherein, the appellant has also been convicted for the offences under the POCSO Act, therefore, it is utmost duty of this Court to go through the finding of the learned trial court in order to find out that what type of the reliable evidences have been considered by the trial court on the point of implication of POCSO Act against the petitioner/appellant. 25. The learned trial court has taken into consideration the content of FIR, wherein, the victim girl who is informant of the case has disclosed her age as 17 years and 10 months. Further, in her statement under Section 164 Cr.P.C. dated 31.08.2019, she has disclosed her age as 17 years. 25. The learned trial court has taken into consideration the content of FIR, wherein, the victim girl who is informant of the case has disclosed her age as 17 years and 10 months. Further, in her statement under Section 164 Cr.P.C. dated 31.08.2019, she has disclosed her age as 17 years. The prosecution has produced the certificate of Central Board of Secondary Education, 2018 (Ext.-6) of the victim girl wherein, her date of birth has been mentioned as 07.10.2001 and based upon that, learned trial court had determined the age of the victim below 18 years on the date of alleged occurrence. 26. The learned trial court has come to conclusive finding that on the date of occurrence, victim was not a major, rather, a minor/child in terms of Section 2(d) of the POCSO Act. Further, it is evident from record that the defence on the other hand has not been able to bring on record any material to disprove or contradict the aforesaid fact. 27. Now, in the back drop of the aforesaid facts, it would be pertinent to discuss the evidence adduced by the prosecution. From perusal of the impugned order, it is apparent that the prosecutrix (P.W. 5) has given a thorough account of the occurrence in her evidence. From the testimony of the victim, it is evident that She has categorically stated that there were altogether 12 accused and three of them committed rape upon her and rest of them assaulted, molested and outraged her modesty. Her further statement is that at the time of rape some of the miscreants had switched on the torch of their mobile phones and she could able to see their faces. 28. It has come on record that shortly after the alleged occurrence statement of the victim has been recorded under Section 164 Cr.P.C., wherein, she has narrated the entire occurrence and by this statement also, the case of prosecution has fully been corroborated. 29. Further, the P.W. 3 who is the friend of the victim, has clearly supported the fact that miscreants arrived, assaulted him and took out Rs. 2,000/- from his possession as well as one I- phone and some of them dragged the victim out from the vehicle and took her in the dark. 30. 29. Further, the P.W. 3 who is the friend of the victim, has clearly supported the fact that miscreants arrived, assaulted him and took out Rs. 2,000/- from his possession as well as one I- phone and some of them dragged the victim out from the vehicle and took her in the dark. 30. Further, the doctor (P.W.7) who has examined the victim after the occurrence has opined that bruise is present below the vaginal orifice and Tenderness is present in perennial region and vagina however, she has opined that no definite opinion about rape can be given and said that bruise is present below vaginal orifice at the time of examination may be due to admitted rape and further stated that all other injuries described above are of within 24 hours. 31. Further, from paragraph-76 of the impugned order, it is evident that victim has identified the present applicant/appellant in the Test Identification Parade (TIP) as the person who had molested and assaulted her. 32. Thus, on the basis of discussion made hereinabove, this Court, is of the considered view that it is not a fit case for suspension of sentence. 33. Accordingly, the interlocutory application being I.A. No.9748 of 2023, is hereby, rejected. 34. 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.) (Sanjay Prasad, J.) Rohit/-