Jharkhand High Court
Mahavir Oraon vs The State Of Jharkhand on 4 September, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.374 of 2021
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Mahavir Oraon, aged about 35 years, Son of Late Ramu Oraon, Resident of Village-Purio, P.O + P.S-Ratu, District-Ranchi ....... ... 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. Sanjay Kumar Pandey, Advocate For the Respondent : Mr. Bhola Nath Ojha, Spl.PP
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th Order No.08/Dated: 4 September, 2025 I.A. No. 9671 of 2025
1. The instant interlocutory application has been filed for keeping the sentence in abeyance in connection with the judgment of conviction dated 30.06.2021 and order of sentence dated 03.07.2021 passed by the learned Addl. Judicial Commissioner-XV-cum-F.T.C(CAW), Ranchi in connection with Sessions Trial No.905 of 2012 arising out of Mandar P.S Case No.92 of 2008, whereby and whereunder, the appellant has been convicted under section 376 (2) (g) of the I.P.C. and sentenced to undergo RI for 10 years and a fine of Rs.10,000/- for the aforesaid offence and in default of payment of fine further directed to undergo SI for one year.
2. It has been contended on behalf of the applicant/appellant that it is a case where the applicant/appellant has falsely been implicated.
3. It has been contended that merely on the basis of the suspicion and old enmity between both the parties, the appellant/applicant has been dragged in this case and subsequently, he has been convicted.
4. It has been contended on behalf of the appellant that the medical evidence does not support the prosecution version as there is no sign of rape or even any assault in the private part has been shown to be there as per the evidence of the doctor.
5. It has been contended that the appellant has already remained in judicial custody for six years out of the maximum sentence of ten years and, as such, the prayer for suspension of sentence may be considered.
6. While on the other hand, the learned Spl.PP appearing for the respondent-State of Jharkhand assisted by the learned counsel appearing for the informant has vehemently opposed the prayer for suspension of sentence.
7. It has been contended that the fact about the period of custody of about six years is not in dispute, but the nature of crime committed by the appellant is serious, since, it is the case of sexual assault to a female child aged about 12 years at the time of occurrence.
8. It has been contended that the medical evidence, in specific term, has said about no sign of rape, rather the doctor has submitted that merely because the spermatozoa has not been found the commission of crime of rape cannot be ruled out. Such reason has been given on the background of the fact that the victim was examined after a gap of four days.
9. It has further been contended by the learned Spl.PP that the dispute of land between the family of the victim and the appellant has not been taken as defence by the appellant under section 313 Cr.P.C showing the reason of false implication by the victim or her family.
10. The learned Spl.PP, based upon the aforesaid grounds, has submitted that it is not a fit case for suspension of sentence.
11. 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 well as the testimony available in the trial Court records, as also the materials exhibit as available therein.
12. This Court before considering the submission made on behalf of the parties needs to refer herein that the prayer for suspension of sentence of the appellant has been made earlier by filing interlocutory application being I.A No.1458 of 2023 which was dismissed as not 2 pressed after some argument vide order dated 20.04.2023, for ready reference the said order is being extracted hereinbelow as:
I.A.No.1458 of 2023"Learned counsel for the appellant, after some argument, has submitted that he is not pressing this interlocutory application.
Accordingly, the instant interlocutory application is dismissed as not pressed."
13. The present interlocutory application is the second one to renew the prayer for suspension of sentence by the appellant.
14. In the present interlocutory application, the ground which has primarily been taken for suspension of sentence is that the appellant has completed more than half of his custody inflicted upon him, i.e., the appellant has remained in judicial custody for about six years ten months out of maximum punishment of ten years.
15. We are conscious with the settled position of law that in term sentence wherein the appellant/applicant has completed more than half of the sentence, generally in such cases the prayer for the suspension of sentence is to be allowed. But at the same time, it is equally settled proposition of law as has been settled by the Hon'ble Apex Court that while granting suspension of the sentence, it is mandatory for the Court to record reasons.
16. In the judgements rendered by the Hon'ble Apex Court in the case of The State of Haryana v. Hasmat, (2004) 6 SCC 175, State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 5 SCC 721, Kishori Lal v. Rupa, (2004) 7 SCC 638 and Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 (also referred to in Dashrath's case supra), the Hon'ble Apex Court has uniformly laid down that one of the essential ingredients of Section 389 Cr.P.C (pari materia of Section 430 BNSS) is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of sentence and the requirement of recording reasons clearly indicates that there has to be careful consideration of relevant aspects.
317. In the above context, the reason refer to reasons which justify the suspension of sentence in all judicial senses, therefore, Term of jail served may be one of the reasons in a given case but may not justify the conscious of the Court to decide the prayer of suspension of sentence without consideration of the evidence produced on record, its quality and reliability, the nature and gravity of the offence, the manner and method in which it has been committed, its impact over the society or the public at large, the object of the law in dealing with the crime, the special enactment introduced to curb the menace etc. and peculiar facts and circumstances of any particular case.
18. Further no straight jacket formula can be applied in all cases that after completion of half of the sentence awarded, the convict is entitled for suspension in each and every case. It is the Court who should take the responsibility to maintain a balance between the rights of the oppressor and the rights of the sufferer and granting suspension without assigning any reason, simply on the basis of period of term completed, can never satisfy or justify a judicial conscious.
19. Herein it is the case of 12 years victim who has been subjected to heinous offence like rape therefore, it is conscious view of this Court that serving of half sentence may be one of the reasons in a given case but it will not be subservient to the "ends of the justice" to decide the prayer of suspension of sentence without taking into consideration the evidence produced on record, the nature and gravity of the offence, the manner and method in which it has been committed, its impact over the society or the public at large.
20. In the backdrop of the aforesaid settled position of law we are now proceeding to examine the argument advanced on behalf of the parties on the aforesaid premise of the settled position of law.
21. This Court for the aforesaid purpose as also for the purpose of exception to the aforesaid position of law needs to refer herein the implication which has been made against the appellant.
22. It is evident from the prosecution version that a minor child (female) aged about 12 years has been subjected to rape. In consequence 4 thereof, the charge has been framed under section 376(2) (g) of the I.P.C, reason being that the present appellant who was very much known to the victim being called by the victim as "Uncle" since, he was friend of the father of the victim. The day when the prosecution has been initiated there was no enactment of the POCSO Act as it has been commended from the year 2012.
23. The victim has been examined as PW3.
24. We have considered the testimony of of PW3-the victim and has found that the appellant has gone to the residence of the victim and with the consent of her father has carried her to fair (mela) and therefrom the appellant has forcefully taken away the victim in a lonely place and committed rape. The victim was gagged by putting handkerchief in her mouth and when she cried, she was assaulted by the appellant as would be evident from the testimony of PW3 which has been taken note of by the learned trial Court, for ready reference the relevant paragraphs of the impugned judgment are being quoted hereunder as:
19. The victim/prosecutrix has very systematically narrated/explained the entire occurrence happened/committed on her as to how the accused took her on the pretext of showing her fair, how he took her in a lonely place on the pretext of answering his natural call and how he alongwith two other persons committed rape against her will one by one by all three. The victim/prosecutrix has stated in para no. 2 of her evidence that उसके पश्चात कुं आ और पेड़ के बीच ये तीन ुं ल ग मेरे साथ बारी-बारी से बलत्कार ककये तथा मैनें कचलाने का क किि ककया त सेन्डल से मेरे साथ मारपीट की गई। She further reiterated her version made in examination in chief during her cross examination in para rno. 4 that महावीर (Accused) मेरे मुंह पर रूमाल रखने के पश्चात मझे घसीट कर ले जाने लगा कजससे मेरे पैर में काटे चभ गये थे। महावीर (Accused) मेरे चेहरे में, पैर, गला वगैरह में अपने सेन्डल से मरा था। किर वहाुं पर अन्य द व्यक्ति आ गये थे। किर उसके बाद ये तीन ुं कमलकर मेरे साथ बलत्कार ककये त मैंने बहुत कचल्लायी कक चाचा बचा लीकजए। चाचा मेरे साथ खद ही गलत कर रहे थे त वह क्या बचायेगें She further narrated her after rape pathetic condition in para no 5 of cross-examination as - 'बलत्कारें ह ने के पश्चात बहुत ददद ह रहा था तथा कबमार जैसी ह गयी थी तथा खन भी कगर रहा था। Such version of the 5 victim/prosecutrix seems to be very natural and trust worthy because of victim heils from a very ordinary (poor) and illiterate or semi literate family in remote and backword village and such girl can not be expected to be so-apt to make a false story to implicate him and to continued the same story even after more than eleven years (as occurrence took place on 15.10.2008 and her evidence was recorded on 04.02.2020) on the cost of her chastity and life long Stigma and also there is nothing on record to implicate him in false case. In the fact of the present case, this court finds that the defence did not succeed to create any dent in the testimony of the prosecutrix which remained un-rebutted, consistent and trust-worthy. Under such condition, the sole evidence of the victim/prosecutrix is sufficient to decide the fate of the case in the light of several decision of Hon'ble Courts but the evidence of the prosecutrix is not alone. It finds support and corroboration from the evidence of her father (P.W.2) who stated how the accused come to him (P.W.2) and took her to show her fair (Mela) and how some other person took his daughter back in unconscious condition and he stated in para no. 2 of his examination in chief that घटना के समय में दकान पर था और मेरी बेटी (Name withheld) मेरे साथ थी। अकभयि महावीर उराुंव वहाुं आया तथा मेरी बेटी क घमाने हेत ले जाने के कलए ब ला त मैंने उससे कहा कक घमाकर वापस मेरे पास पहुुंचा दे ना नहीुं त वह नाबाकलक है कहीुं बौरा जायेगी। लगभग 2-3 घण्टे बाद मेरी बेटी क ककसी व्यक्ति ने मेरे पास पकड़कर लाया, उस समय मेरी लड़की बेह िी हालात में थी। बेटी क ह ि आने पर बतायी कक महावीर उराुंव -मह. दबाते हुए एवुं मारपीट करते हुए ले गया तथा मेरे साथ बेइज्जती एवुं रे प केस ककया। लडकी के साथ ककतने ल ग रे प ककया यह बात लड़की बताएयेगी। He further corroborated and reiterated in para no. 6 of his cross-examination that -घटना की जानकारी मझे लड़की की क्तिकत दे खकर पता चल गया था। लड़की आकर बेह िी जैसा ह गयी थी जबकक वह हमारे पास से ठीक ठाक क्तिकत में गई थी। Other witness P.W. 4 and P.W. 5 who came to know about the occurrence from her parents have also supported and stated about the commission of rape and whey are not hostile. The version of the victim/prosecutrix fully supported and corroborated by the versions of other witnesses established the requirement of law for the offence u/s 376(2)(g) IPC and the plea of the defence regarding none-
corroboration is not sustainable.
620. The main thrust of the defence is on the none-supportive medical evidence in which the doctor examined as P.W.1 has found no injury on her body part and no sign of recent rapture of hymen and the doctor stated during cross examination that she had not found any evidence of recent, sexual intercourse. Here the fact of the case come at a glance that the occurrence took place on 15.10.2008 and the medical examination of victim/prosecutrix was done after four day i.e. on 20.10.2008 and as per the medical jurisprudence certain vital things are mitigated due to such long gap including that spermatozoa are rarely found in the vagina after 7 hours after coitus and the level of acid pharphatise in the vagina arrases to about 3000 IU (international units) per-litter in about 2 to 3 hours after intercourse and gradually returns to normal in about 12 to 24 hours. The doctor found that vaginal smear shows no alive or dead spam found. The is very normal and natural in the fact of the present case because there is every chance of washing out of semen from the vagina during taking both by the victim/prosecutrix in such long span of time i.e. since 15.10.2008 to 20.10.2008 but it does not mean that the sexual intercourse has not taken place, also because the seminal emission is not necessary to establish rape but what is necessary is that there must be penetration. Moreover it is settled that medical evidence is a corroboration piece of evidence and it cannot prevail over ride the trust-worthy testimony of the victim/prosecutrix and other witnesses and even otherwise in the case of sexual offence corroboration as a condition for judicial reliance on the testimony of a victim/prosecutrix is not a matter of law but may be a guiding factor. The plea of the defence of none- supporting medical report therefore does not hold any force.
Hon'ble Supreme Court has been pleased to endorse the view in the case of Ranjit Hazarika Vrs State of Assam reported in (1998) 8 SCC 635 that the medical opinion cannot through over board on otherwise cogent and trust worthy evidence of the prosecutrix.
Hon'ble Supreme Court in the case of the State of Punjab Vrs Gurmit Singh reported in (1996) 2 SCC 384 observed -
"Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is 7 interested in the outcome of the charge levelled by her, but there is no requirement of low to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self- inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding, Corroborative evidence is not an Imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
21. The doctor did not find any injury on her body part. Again the some things apply that after 5-6 day (Offence on 15.10.2008 and medical examination on 20.10.2008) and due to the physical making of persons of the place, the injury/wound might have healed up. Again this aspect is not the condition precedent to establish case of Rape and cannot be a ground to hold that no rape was committed on her where the victim (P.W.-3) has unrebuttedly and consistently stated the fact of rape committed upon her by the accused and the same has been fully supported and corroborated by rest witnesses. Hon'ble Supreme Court viewed in B.C. Deva Vrs The State of Karnataka reported in (2007) 12 SCC 122 that inspite of the fact that no injuries were found on the person of the prosecutrix, yet finding her versions to be reliable and trust-worthy conviction can be held and Hon'ble the Court observed that-
"The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."8
25. We have also considered the medical evidence and has found that though doctor has not found any sign of assault on the private part of the victim but the doctor has given its reasoning that since the victim was examined after a gap of four days and, as such, there is no chance of any availability of any sign due to the reason of bath etc. However, the doctor has not specifically denied that merely because the sign of the physical assault was not there nor any spermatozoa has been found, the sexual assault cannot be ruled out.
26. This Court has also considered the argument as to whether any plea has been taken of false implication of the appellant, but we after going through the testimony of the witnesses has found that no question has been put showing the defence of false implication even not by way of suggestion.
27. We have gone through the statement recorded under section 313 Cr.P.C and have found that no such defence has been taken of false implication.
28. This Court considering the law that even if there is any discrepancy in the medical evidence but if the prosecution version is being supported by the prosecutrix, herein the victim who is aged about 12 years, the same is not a ground for suspending the sentence even after the appellant has completed the custody of more than half of the sentence.
29. The appellant/applicant, in the defence, at the time of recording his statement under section 313 Cr.P.C has failed to explain his innocence.
30. This Court, considering the aforesaid fact and also taking into consideration the fact that on earlier occasion the prayer for suspension of sentence of the appellant/applicant by way of filing one interlocutory application being I.A No.1458 of 2023 which has been dismissed after some argument as not pressed by this Court vide order dated 20.04.2023, is of the view that it is not a fit case for suspension of sentence.
31. Therefore, we are not inclined to enlarge the present applicant on bail by suspending his sentence.
932. Accordingly, I.A. No. 9671 of 2025 stands dismissed.
33. 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.
34. In view thereof, I.A. No. 9671 of 2025 stands disposed of with the aforesaid observation.
35. However, taking into consideration the period of custody, the appellant/applicant is at liberty to file an appropriate application for early hearing of the present criminal appeal.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Sudhir 10