Jharkhand High Court
David Kudada vs The State Of Jharkhand on 23 July, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1362 of 2024
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David Kudada, aged about 60 years, son of Late Mangta Kudada
…. …. Appellant
Versus
The State of Jharkhand ….. …. Respondent
CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
——
For the Appellant : Mr. Sunil Singh, Advocate
For the State : Mrs. Shweta Singh, A.P.P.
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04/Dated: 23.07.2026
I.A. No.9630 of 2026
Prayer
1. The instant interlocutory application has been filed under Section
430(1) of the B.N.S.S., 2023 for suspension of sentence dated
31.08.2024 passed by the learned Addl. Sessions Judge-1st –
cum-Special Judge under the POCSO Act, West Singhbhum at
Chaibasa, in connection with Special POCSO Case No.14 of
2020, arising out of Chaibasa Muffasil P.S. Case No.22 of 2020,
whereby and whereunder, the appellant has been convicted for
the offence under Section 376AB of the IPC and under Section
4(2) and 6 of the POCSO Act and sentenced to undergo R.I. for
20 years along with fine of Rs.20,000/- and in case of default of
payment of fine, he has further been directed to undergo S.I. of
additional one year and further sentenced to undergo
imprisonment for life for the offence under Section 6 of the
POCSO Act and fine of Rs.30,000/- and in case of default of
payment of fine, he has been directed to undergo S.I. of additional
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one and a half year.
Submission of the learned counsel for the appellant
2. Learned counsel for the appellant has submitted that although, on
earlier occasion, one interlocutory application being I.A. No.11322
of 2024 was preferred but the same was dismissed as not
pressed.
3. The present interlocutory application has been filed renewing the
prayer on the ground that prosecution has miserably failed to
establish the charge, rather, due to pending land dispute in
between the parties, the present case has been instituted.
Submission of the learned A.P.P. for the respondent-State
4. While, on the other hand, learned A.P.P. appearing for the
respondent-State has vehemently opposed the prayer for
suspension of sentence.
5. The ground, which is being taken renewing the prayer for
suspension of sentence, had already been argued while pressing
the interlocutory application being I.A. No.11322 of 2024 and after
some argument, the said interlocutory application was dismissed
as not pressed.
6. It has been contended that the victim, P.W.2 aged about less than
12 years, has fully supported the prosecution version and remain
consistent what she has been stated in the statement recorded
under Section 164 of the Cr.P.C pari materia to Section 183
B.N.S.S.
7. The version of P.W.2, the victim has also found corroboration from
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the testimony of doctor, who has been examined as P.W.1.
8. Learned State Counsel, based upon the aforesaid grounds, has
submitted that it is not a case where the sentence is to be
suspended.
Analysis
9. This Court has heard the learned counsel for the parties.
10. The fact about renewing this prayer, 2nd in number, is not in
dispute, since, one interlocutory application being I.A. No.11322 of
2024 was withdrawn after some argument, vide order dated 9th
January, 2025.
11. The ground has been taken, while renewing the present
interlocutory application, is of pending land dispute.
12. This Court, in order to appreciate the arguments advanced on
behalf of the parties, has gone through the finding recorded by the
learned trial Court, as also, the material available in the Trial Court
Records.
13. The victim has been examined as P.W.2. The age of the victim
has been assessed to be less than 12 years and it has been
taken note by the learned Trial Court in the impugned judgment
that there is no objection with respect to the issue of age of the
victim.
14. The statement of the victim was recorded under Section 164 of
the Cr.P.C pari materia to Section 183 B.N.S.S. and the
prosecution version has been supported.
15. The P.W.2 has supported the prosecution version in the
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examination-in-chief and remained intact in the cross-examination
and as such, the learned Trial Court has taken into consideration
the version of P.W.2, as per the statement recorded under Section
164 Cr.P.C., pari materia to Section 183 B.N.S.S and the same
has fully been corroborated in the testimony, as also, other
witnesses have also supported the prosecution version.
16. The doctor has been examined as P.W.1. The doctor has found
the sign of commission of rape while giving following descriptions;
“P/V Examination:-Hymen-Multiple tear of
hymen with lacerated would of vagina upto
perineum wound bleeding on touch, margin
red and odematous. Age of injury more than
06 hours but within 72 hours.”
17. The doctor has also found the age of the victim in between 7 to
8 years. The overall opinion based upon the examination has
been recorded after conducting physical, pathological and
radiological report, i.e.,
(i) Forceful penetration of vagina has been
tried leading to tear of hymen and
vaginal wall including perineum.
(ii) Age of victim 07 to 08 years.
(iii) No mark of violence and foreign particle
found on the body of victim.
18. Insofar as the plea of prolonged custody, stated to be of about
seven years, is concerned, this Court is of the view that such
circumstance, standing alone, cannot furnish a valid ground for
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suspension of sentence. The jurisprudence is clear that mere
duration of incarceration does not entitle an accused to
suspension of sentence. The consideration of custody must
necessarily be coupled with the element of attributability, as
established and substantiated during the course of trial.
19. It is the settled position of law that the period of custody cannot
be the sole ground for suspension of sentence, rather, the nature
of crime as has been found to be proved against one or the other,
the appellant herein, is to be taken into consideration and even if
the convict has completed substantive sentence, that cannot be a
sole ground for suspension of sentence if the nature of offence
having been proved in course of trial is serious.
20. The Hon’ble Apex Court in the case of Shivani Tyagi v. State
of U.P. & Anr. 2024 INSC 343 has categorically observed that
mere factum of sufferance of incarceration for a particular period
and likelihood of delay in disposal of cases, in a case where life
imprisonment is imposed, cannot be a reason for invocation of
power u/s. 389 Cr.P.C./430 BNSS without referring to the relevant
factors and each case has to be examined on its own merits and
based on the given parameters.
21. It has further been observed by the Hon’ble Apex Court that the
factors like nature of the offence held to have committed, the
manner of their commission, the gravity of the offence, and also
the desirability of releasing the convict on bail are to be
considered objectively and such consideration should reflect in
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the consequential order passed under Section 389, Cr.PC/430
BNSS. It is also relevant to state that the mere factum of
sufferance of incarceration for a particular period, in a case where
life imprisonment is imposed, cannot be a reason for invocation of
power under Section 389 Cr.PC/430 BNSS without referring to the
relevant factors.
22. Further, it needs to refer herein that recently, the Hon’ble Apex
Court in the case of Chhotelal Yadav versus State of
Jharkhand & Anr. (Criminal Appeal no.4804/2025) has
specifically observed that while considering the plea for
suspension of sentence of life imprisonment is that the convict
should be in a position to point out something very palpable or a
very gross error in the judgment of the Trial Court on the basis of
which he is able to make good his case that on this ground alone,
his appeal deserves to be allowed.
23. Thus, the settled connotation of law that even if the convict has
completed substantive sentence, that cannot be a sole ground for
suspension of sentence if the nature of offence having
been proved in course of trial is serious.
24. This Court, taking into consideration the age of victim and the
prosecution version, which has fully been supported by the victim,
having been found in corroboration with the testimony of P.W.1,
the doctor, is of the view that it is not a case where the sentence
is to be suspended.
25. Accordingly, interlocutory application being I.A. No.9630 of
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2026 stands dismissed.
26. It is made clear that any observation made herein will not
prejudice the issue on merit as the appeal is lying pending for its
consideration.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
23.07.2026
Rohit/-
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