Jharkhand High Court
Minhaz Ansari vs The State Of Jharkhand on 4 October, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.125 of 2023
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Minhaz Ansari .... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Randhir Kumar, Advocate Mrs. Pinki Kumari, Advocate For the Respondent : Mr. Shailesh Kumar Sinha, A.P.P
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th Order No. 04/Dated 4 October, 2023 I.A. No.7258 of 2023
1. The instant interlocutory application has been filed under Section 389 (1) of the Code of Criminal Procedure on behalf of appellant Minhaz Ansari, for suspension of sentence during the pendency of the instant appeal after suspending the impugned order of sentence dated 12.12.2022 passed by the learned Special Judge POCSO Act Giridih in POCSO case No. 71 of 2020 arising out of Nimiaghat P.S. Case No. 60 of 2020 whereby and whereunder he has been convicted for the offence under sections 366A of I.P.C. and u/s 9(g) (l)/10 of POCSO Act and has been sentenced to go Rigorous imprisonment for 10 years along with fine of Rs. 10,000/- (ten thousand) for the offence U/S 366A. Further he has been sentenced for Rigorous imprisonment for 7 years along with fine of Rs. 5,000/- (five thousand) for the offence under Section 2 9(g)(l)/10 POCSO Act. All the sentenced were directed to run concurrently.
2. The basis of the prosecution case is the written report of the informant who is the father of the victim. The prosecution case in brief is that on 17.6.2020 his daughter (victim) aged about 17 years was sleeping in the house. When his wife got awake at 11 P.M. then she saw that her daughter is not on the bed and door of the house is open. Seeing this she raised alarm, then all the members of the family got awake and started searching his daughter. In spite of search at different places including the house of his relatives he could not trace her. During the course of search, he went to the house of Babli Singh and there he came to know that Babli Singh is also not in his house. From it appears that Babli Singh after making allurement has taken his daughter alongwith him to some place.
3. Learned counsel for the appellant has submitted that it is a case where the prosecution has miserably failed to prove the charge beyond all reasonable doubt. Such argument has been made on following grounds:-
(i) The appellant has not been named in the F.I.R and he has been arrayed as an accused in the instant case only on the basis of suspicion.3
(ii) As per the deposition of witnesses the victim and the appellant and co-convict Babli Singh belong to the same village and they were known to each other.
(iii) The appellant was arrested on 28.06.2020 and he was released on bail on 26.02.2021 and after conviction he has been languishing into judicial custody since 05.12.2022.
4. Learned counsel for the appellant on the aforesaid premise has submitted that it is a fit case where the sentence is required to be suspended.
5. While on the other hand, learned A.P.P. appearing for the respondent-State of Jharkhand has opposed the prayer for suspension of sentence on the following grounds:-
(i) The appellant is not entitled for relief sought for as he has been convicted and sentenced in heinous nature of offence which has been committed against minor.
(ii) P.W.1 and P.W.5 both doctors, has opined that age of victim was 16 years. Further at Para-23 of the impugned judgment P.W.10 who is Headmaster of school has issued certificate and as per certificate date of birth of victim is 20.05.2004.
(iii) In 164 Cr.P.C. statement (Ext-8) the victim has categorically stated that the appellant helped Babli Singh in taking away the victim.4
6. Learned A.P.P based upon the aforesaid argument has submitted that it is not a case where sentence is required to be suspended.
7. This Court has heard learned counsel for the parties, perused the finding recorded by learned trial Court in the impugned order as also the testimony of the witnesses including the documents available in Lower Court Records.
8. This Court, before appreciating the argument advanced on behalf of parties and in order to examine as to whether in the given facts of the case it is a fit case where sentence is to be suspended, deems it fit and proper to refer the settled position of law regarding consideration to be made at the time of suspension of sentence, as has been settled by Hon'ble Apex Court in Preet Pal Singh vs. State of U.P. reported in (2020) 8 SCC 645 wherein at paragraphs 32,35 and 36 it has been held which is being quoted hereunder as:-
"32. In Mauji Ram v. State of U.P. [ (2019) 8 SCC 17] , this Court referred to Ajay Kumar Sharma v. State of U.P. [ (2005) 7 SCC], Lokesh Singh v. State of U.P. [ (2008) 16 SCC 753] and Dataram Singh v. State of U.P. [ (2018) 3 SCC 22] and stated categorically that this Court had time and again emphasised the need for assigning reasons while granting bail.
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 5 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."
9. It is evident from the aforesaid judgment, that during considering suspension of sentence under section 389 of Cr.P.C which is the post-conviction stage, the presumption of innocence in favour the accused cannot be available and at this stage Court has only duty to see that the prima-facie case is made out or not.
10. We are now proceeding to examine material available on record and the rival submissions advanced on behalf of parties.
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11. It is evident from the record that name of present appellant has been surfaced during the course of investigation. The victim girl has not been examined as a witness because she was died on 02.07.2020 due to mis- happening in the Bath-room.
12. However before her death she has given her statement before the Magistrate under section 164Cr.P.C. and the same has been proved by P.W.12 Judicial Magistrate, Giridih and marked as Ext.8.
13. As it has been properly proved by P.W.12, so genuineness of the statement of the victim recorded by him u/s 164 Cr.P.C. is not in dispute.
14. Although the statement of the victim recorded u/s 164 Cr.P.C. is not substantive evidence but it can be used for corroborative purpose and, as such, duly proved.
15. In her statement she categorically stated that she was kidnapped by Babli Singh and Minhaj Ansari on motorcycle. She was sitting in the middle of the motorcycle. She when tried to raise alarm the present appellant pressed her mouth. For ready reference the statement of the victim as recorded before the Magistrate under section 164 Cr.P.C (Ext.8) is being quoted herein under:-
"मैं यह बयान अपनी मर्ज़ी से दे रही हूँ A किसी िे दबाव में आिर नहीीं दे रही हीं A 7 कदŒ 17.06.2020 िो अपने घर रीं गामाटी में 10 बजे रात िो सोने चले गए किर 11-12 बजे रात में उठिर शौच िे कलए बाहर कनिले तो कमन्हाज अींसारी और बबला कसींह पहले से ही वहाीं पर था उन दोनोीं ने मेरा मींह दबा कदया और मोटरसायिल में बैठा िर जबरदस्ती ले गयाA मोटरसायिल बबला कसींह चला रहा था मैं बीच में बैठी थी और पीछे से कमन्हाज अींसारी मेरा मूँह दबा रखा था बबला कसींह िा घर मेरे घर िे सामने है और कमन्हाज मेरे गाूँ व में ही रहता है मैं बेहोश हो गई थी और जब मझे होश आया तो मैं कवरोध िी और पूछी कि िहाूँ ले जा रहे हो तब बबला कसींह बोलने लगा मैं तमसे प्यार िरता हूँ और तम्ीीं से शादी िरना चाहता हूँ नहीीं िरोगी शादी मझसे तो जहर खािर मर जाएीं गेA भागने िे कलए मैं मोटरसायfिल से िूदी कजससे मेरे पैर में चोट आयाA किर मझे ले जािर नागपर अमरावती ले गया वहाीं राधािृष्ण भगवान वाले मींकदर में मेरे माथे में कसन्दू र डाल कदयाA कमन्हाज िा घर में दो कदनोीं ति रुिे बबला कसींह मेरे साथ जबरदस्ती शारीररि सींबींध बनाया मैं कचल्लाई ले किन नहीीं माना बार बार मेरा मींह दबा दे रहा था उसिे बाद हजारीबाग नगडी 24.06.2020 शाम में मझे बबला कसींह नागपर अमरावती से लेिर आयाA वहाीं उसिे मामा घर में थे A मेरे कपताजी लोग 29.06.2020 िो मझे हजारीबाग नगडी से ढू ूँ ढ़ कलयाA"
16. From the statement of the victim as recorded under section 164 Cr.P.C. prima-facie it appears that present appellant facilitates in the commission of said crime of kidnapping.
17. Further, the statement to the effect that Minhaj Ansari and Babli Singh took her with them has also been 8 corroborated by her father Ravindra Saw PW-3 in his deposition.
18. Further it is pertinent to mention here that in order to attract any offence under the provisions of the POCSO Act, it should be proved by the prosecution that on the date of the commission of the crime, the victim was a child. The term "child" has been defined in Section 2(d) of the POCSO Act, which states that child means any person below the age of 18 years.
19. Thus, for the purpose of any offence under the POCSO Act, the age of the victim should be proved to be below 18 years as on the date of commission of the alleged crime.
20. In the instant case date of birth certificate of the victim issued by Parasnath Digamber Jain High School, Isri Bazar, Giridih has been produced and the same has been exhibited as Ext. 3. This exhibit has been proved by P.W.10. In Ext. 3 date of birth of the victim has been mentioned as 20.05.2004 and taking the birth of the victim as 20.05.2004 her age on 17.06.2020 day of commission of crime comes to 16 years 28 days. As such the victim girl was child below 18 years of her age on the date of her kidnapping.
21. The aforesaid fact has already been fortified by the testimony of P.W.5 Dr. Chandan Kumar Singh wherein he 9 stated that on the basis of physical, clinical, radiological and dental findings the age of the victim is about 16 years and the medical board report bears his signature and on his identification his signature on the medical report has been marked as Ext. 1/1.
22. Thus from evidence available on record it is crystal clear that when crime was committed against victim, she was minor.
23. It is further evident from perusal of the statement of the victim recorded under Section 164 Cr.P.C., as quoted and referred hereinabove, that she has fully supported the prosecution version so far as the complicity of the appellant is concerned.
24. The said statement recorded under Section 164 Cr.P.C. has been proved by PW-12, Judicial Magistrate, Giridih, marked as Exhibit -8.
25. The statement so recorded of the victim under Section 164 Cr.P.C. having been corroborated by PW-3 and considering the nature of charge, we are of the view that it is not a case where the sentence is fit to be suspended.
26. Accordingly, the instant Interlocutory Application I.A. No. 7258 of 2023 stands rejected.
27. The observation herein has been made prima facie only for the purpose of consideration of suspension of sentence.
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28. Let a copy of this order be forwarded to the appellant through Jail Superintendent.
29. The appeal will be listed in due course.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Birendra/