The court upheld the conviction for gang rape based on credible victim testimony, ruling that contradictions and co-accused acquittals do not automatically justify sentence suspension.

ORDER :

I.A. No.10208 of 2024

1. The instant interlocutory application has been filed under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 for suspension of sentence dated 18.10.2023 passed by learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi in POCSO Case No.81 of 2020, arising out of Sukhdeonagar P.S. Case No. 205 of 2020 whereby and whereunder, the appellant has been convicted for the offence under Section 376(D) of the Indian Penal Code and sentenced to undergo R.I. for 20 years along with fine of Rs.15,000/- and in default of payment of fine, further S.I. for six months.

2. It has been contended on behalf of the appellant that it is a case where if the testimony of all the witnesses will be taken together then there will be material contradiction and as such, on the aforesaid ground only the judgment passed by the learned trial court will be said to suffer from infirmities and hence, it is a fit case for suspension of sentence.

3. Learned counsel has further submitted that even the testimony of the victim, who has been examined as P.W.2 will be taken into consideration then also the same cannot be said to be trustworthy and hence, on this count also, the judgment impugned suffers from infirmity and as such it is a fit case for suspension of sentence.

4. Learned counsel has further submitted that the other co- accused person namely, Dablu @ Bablu Oraon @ Ronit Oraon has been acquitted and as such the appellant may be enlarged on bail after suspending the sentence.

5. While on the other hand, Mr. Pankaj Kumar Mishra, learned counsel appearing for the State has vehemently opposed the prayer for suspension of sentence by citing the order passed by the Co-ordinate Bench of this Court dated 22.07.2024 passed in I.A. No.1869 of 2024 arising out of Cr. Appeal (D.B.) No.2200 of 2023 whereby and whereunder, the prayer for bail of the co-convict namely Patra @ Pran Munda has already been taken into consideration and the same interlocutory application has been rejected. It has been contended that the case of the present appellant is also at par with the case of Patra as would be evident from the testimony of P.W.2, the victim as such, it is not a fit case for suspension of sentence.

6. We have heard the learned counsel for the parties and gone through the finding recorded by the learned trial court in the impugned judgment as also the testimony available in the lower court record.

7. This Court after considering the argument advanced on behalf of the State wherein it has been submitted that the case of the co-convict namely Patra @ Pran Munda has already been taken by the Co-ordinate Bench of this Court vide order dated 22.07.2024 passed in I.A. No.1869 of 2024 arising out of Cr. Appeal (D.B.) No.2200 of 2023, which has been rejected, as such, we have in order to come to the finding as to whether the case of the present appellant is different to the case of Patra.

8. It appears that the conviction of the appellant is based upon the testimony of the P.W.2 and it is evident from the testimony of P.W.2, the victim, who, in her deposition, had deposed that the Patra @ Pran Munda, appellant in Cr. Appeal (D.B.) No.2200 of 2023 and Sunil Munda, the appellant in the present appeal, both had brought the victim in a peak near dam site and disrobed her and committed rape with her. The deposition so made is also available therein the statement recorded under Section 164 of the Code of Criminal Procedure, marked as Ex.2. Hence, the case of the present appellant is not different from the case of the co-accused Patra @ Pran Munda.

9. The ground has been taken that the other co-accused person namely, Bablu Murmu has been acquitted. We have also examined the imputation as has been alleged against the accused who has been acquitted, i.e., the co-accused, Bablu Oraon and found from the testimony of P.W.2, the victim that he after commission of rape by both the persons, Sunil Munda, the present appellant and Patra @ Pran Munda