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 -1- 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.
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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 -3- 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.
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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 -5- 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."-6-
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 -7- 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 -8- 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 -9- 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 appellant herein.
32. This Court, on the basis of the discussion made hereinabove and considering the testimony of the victim girl about the commission of crime, is of the view that it is not a fit case where the sentence is to be suspended.
33. Therefore, this Court is of the view, the sentence as inflicted upon the present appellant is not fit to be suspended, during pendency of the appeal.
34. Accordingly, the instant Interlocutory Application being I.A. No. 13001 of 2025 is hereby rejected.
35. It is made clear that any observation made hereinabove will not prejudice the case of the parties on merit since the appeal is lying pending for its consideration.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) N.A.F.R. Alankar/-
19th November, 2025
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