Hiralal Sharma vs State Of Jharkhand

Heard learned counsel for the appellant and learned A.P.P. for the State on the prayer for suspension of sentence made through I.A. No. 2509 of 2019.

Sole appellant stands convicted in connection with Special (POCSO) Case No. 03/2016 by the impugned judgment dated 16th January, 2019 rendered by the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge-III, Godda for the offence punishable under Sections 302 and 201 of I.P.C and has been sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 10,000/- and a default sentence under Section 302 of I.P.C and further sentenced to undergo Rigorous Imprisonment for 3 years with a fine of Rs. 3,000/- and default sentence under Section 201 of I.P.C. Appellant's mother, Bijli Devi has been acquitted by the same impugned judgment.

Learned counsel for the appellant submits that the case of the prosecution is not based on any direct or eye witness account. It is based on circumstantial evidence as no one had seen the occurrence. As per the case of the informant recorded on 11th June, 2015 at about 5:00 p.m his sole son aged about 12 years had gone to his maternal grandfather's house at village Sukhari on 6th June, 2015. On 10th June, 2015, he had gone to watch cricket match, but did not return to his house. Thereafter, his maternal grandfather (P.W.5) started searching and after getting information the informant also proceeded to the said village in the night, but the son could not be traced. Missing information was given to the local police by the father-in-law of informant and thereafter in the meantime he got information that dead body of a child is floating in a pit near Ganga Pump Nahar. On reaching there, the dead body was identified as that of his son. Learned counsel for the appellant submits that P.W.2, Sheikh Sajid, P.W.7, Rajkumar Yadav and P.W. 12, Juli Devi have in their deposition and statement made under Section 164 Cr.P.C tried to project that the appellant was last seen with the minor boy and thereafter his dead body was recovered. The prosecution witnesses including P.W.1, maternal aunt of the deceased and P.W.5, maternal grandfather of the deceased have also tried to project that the victim had gone on three occasions on the same date with the appellant. After taking meal, he had gone to watch cricket match, but did not return to his house. It is submitted that P.W.5 has made categorical statement that on not finding his grandson back, he got announcement made on loudspeaker in the village. P.W.12, against whom a criminal case has been registered by the father of the appellant, Sri Vijay Sharma bearing Meharma P.S. Case 255 of 2013 under Section 307 of I.P.C and other provisions of I.P.C (Ext.-B) has surprisingly stated during trial and in her statement under Section 164 Cr.P.C that at about 1:30 in the night while she was sleeping on the roof of her room and she woke up due to rain, then she found minor boy being taken away on motorcycle by the appellant and his mother accused, Bijli Devi. P.W.7, in his statement, recorded under Section 164 Cr.P.C as Ext.3 has stated that he was woken up at 1:30 a.m. on the night of 10th June, 2015 by his wife to pluck mango. While he was going, on way he had seen the victim minor boy along with the appellant and his mother, Bijli Devi. In his statement at para-3 he states that the victim boy was missing on 10th June, 2015 at about 6:00 p.m. which is known to everyone. The case of the prosecution was built upon the allegation of sexual assault as punishable under POCSO Act, 2012, but the learned trial court acquitted the appellant of the said charge as there no evidence was found to that effect even from the postmortem of the dead body of the boy by P.W.9 Doctor, who has proved the report as Ext.-4. Doctor has found cause of death as Asphyxia by throttling. It is submitted that it is apparent that interested witness such as P.W. 12 and related witnesses of the informant P.W.1 and P.W.5 had tried to falsely implicate the appellant, considering the past enmity. Therefore, appellant should be enlarged on bail during pendency of this appeal. He is in custody since the date of his conviction dated 16th January, 2019.

Learned counsel for the State has strongly opposed the prayer. He submits that the case of the prosecution though is based on circumstantial evidence, but the evidence of prosecution witnesses like P.W.1 maternal aunt P.W.5, maternal grandfather P.W.7, Rajkumar Yadav, who had last seen the victim with the accused appellant. P.W.12 Juli Devi, who had also last seen the appellant with the minor boy conclusively prove all the links leading to guilt of the appellant and no other. As such, appellant should not be enlarged on bail during pendency of this appeal.

We have considered the submission of learned counsel for the appellant and State. We have also taken note of the facts and circumstances including the relevant material evidence relied upon by the parties from Lower Court Records.

On consideration of the submissions and perusal of the materials on record, it appears that the prosecution case was based on circumstantial evidence and primarily the last theory. However, on close scrutiny of evidence of P.W. 7 and P.W.11, who claim to be witnesses having last seen the victim in night at 1:30 p.m. with the appellant and his mother accused Bijli Devi and also the deposition of P.W.5 maternal grandfather of the victim who stated that since evening when his maternal grandson was missing he had made announcement on loudspeaker, we are of the view that appellant has made out a case for grant of suspension of sentence during pendency of this appeal. As such, let the appellant, Hiralal Sharma be released on bail, during pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Special Judge (POCSO)-cum-Additional Sessions Judge-III, Godda in connection with Special (POCSO) Case No. 03/2016, arising out of Meharma P.S. Case No. 242/2015, corresponding to G.R. No. 1159 of 2015, subject to the condition that appellant and his bailors will not change their address without prior permission of Trial Court.

I.A. No. 2509 of 2019 stands allowed accordingly.