Sentence suspended in appeal of Rape conviction, Bail Granted by High Court

19/11/2018

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRA No. 25/2018, IA No. 01/2018
Date of order: 16.11.2018

Ranjeet Singh vs State of J&K

Coram:
Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For Petitioner(s) : Mr. A. K. Sawhney, Advocate
For respondent (s) : Mr. Raman Sharma, Dy.AG

i) Whether to be reported in
ii) Whether approved for reporting
in Press/Media : Yes/No.

IA No.01/2018
1. Appellant has filed the instant petition for suspension of sentence along with appeal under Section 410 of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) against the judgment of conviction/order of sentence dated 30.05.2018/ 31.05.2018 respectively passed by the learned Principal Sessions Judge, Reasi, in File no.165/Sessions, whereby applicant/appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 25,000/-for offence under Section 376 RPC.
2. The case of the appellant is that he was arrested on 01.01.2010 and released on bail on 26.11.2010. He was again taken into custody on 05.04.2012 and released on bail on 07.04.2012. Therafter, again on 07.10.2017 he was taken into custody and since then appellant is in continuous detention and is presently lodged in Central Jail, Jammu.
3. It has further been stated that case of the prosecution in brief is that on 31.12.2009, Gayatri Devi (mother of the victim) lodged a written complaint in the Police Post, Ban Ganga, alleging that on the previous night at 11 p.m her daughter (name withheld) had gone to fetch water at Dhaba More and at the time when she was fetching water a boy, namely, Ranjeet Singh S/o Pritam Singh R/o Purana Daroor came there and caught hold her daughter and took her towards the bushes and then he committed forcible rape upon her. Her daughter raised alarm and get rescued herself from accused. She returned back to house and narrated the whole incident to her mother-Gayatri Devi. On the basis of this report, FIR No.178/2009 under Section 376 RPC was registered in Police Station, Katra and the investigation commenced. The statements of the witnesses under Section 161 Cr.P.C. were recorded. The clothes of the prosecutrix were examined by radiologist for the determination of her age and as per the report of radiologist the prosecutrix is more than 12 years, but less than 14 years.
4. After conclusion of the investigation, on 15.01.2010 challan for the commission of offence under Section 376 RPC was presented before JMIC, Katra. Vide order dated 18.02.2010, accused/appellant herein was charged for the commission of offence under Sections 376/354 RPC. In support of the charges, prosecution has examined PW-1 prosecutrix (name withheld), PW-2 Gayatri Devi, PW-3 Kunwa, PW-4 Const. Soba Ram, PW-5 Rattan Singh Naib Tehsildar, PW-6 Ramesh Chander SPO, PW-7 Dr.Dinesh Khajuria Radiologist, PW-8 Dr. Anila Kour, PW-9 Sudhir Sadhotra SI/IO and PW-10 Sunil Sharma SI. In defence no witness has been examined.
5. The Principal Sessions Judge, Reasi after appreciating the materials on record, convicted the accused/ appellant herein for the offence under Section 376 RPC by its judgment and order dated 30.05.2018. It has been stated that the Gayatri Devi, mother of the prosecutrix, deposed before the Court that she is not in the knowledge of report of police what is scribed only thumb impression was obtained meaning thereby that she has not supported the prosecution case and thus was declared as hostile. She was the informant, an independent and reliable witness, but she did not support the prosecution case; That PW Victim who also deposed against prosecution case and washed away the entire case of the prosecution, was declared hostile and despite prosecution cross-examined her, nothing could come out to support prosecution story. That the other witnesses including Doctor and Police Officials also dented the prosecution story but benefit of doubt is provided to prosecution, which is against law and facts; that the impugned Judgment is the result of complete mis-appreciation of prosecution evidence and non- application of law and such is liable to be set aside.
State has filed objections and has stated that petitioner has been involved in serious case and has been convicted by trial court after prosecution proved its case beyond reasonable doubts..
6. I have heard and gone through law on the subject,
7. Section 426 of the Code of Criminal Procedure, deals with the subject. It reads as under:
“426. Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
8. From perusal of Section 426 Cr.P.C., it is evident that save and except, the matter falling under category of sub-section (3) neither there happens to be any principle laid down nor criteria has been fixed for consideration of the prayer of the appellant/convict and further, having a judgment of conviction erasing the presumption leaning in favour of accused regarding innocence till contrary recorded. There is thus a distinction in between pre-conviction as well as post conviction prayer for granting or refusing the bail.
9. On account of deficiency of the judges in comparison to filing, pendency of the appeal, backlog has gone up in such a manner that it looks, if not impossible but a exceptional task to hear and decide the appeal at an earliest; so every case of such like nature has to considered on facts and while granting bail court has to evaluate certain facts of each case; while granting bail or suspending the sentence court should give reasons.
10. In 1999 Cr.LJ 2568 in case titled Bhagwam Rama Shinde Gosai and Ors. Vs. State of Gujarat on 12 May, 1999, it is held as under:-
“This is a case where appellants have been convicted by the trial court of the offence under Section 392 read with Section 397 and each of Them was sentenced to rigorous imprisonment for 10 years. They filed an appeal before the High Court of Gujarat and moved for suspension of sentence, but that was not allowed. At a later stage they again moved for suspension of sentence and that too was dismissed by the impugned order. Unfortunately, when they made a motion for having their appeal expedited that also was declined by the High Court on the premise that the High Court is having older appeals on the board.
When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter suspending the sentence, so as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.
In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00 P.M. and 6.00 P.M. until disposal of the appeal pending before the High Court.”
11. In the present case, from the perusal of judgment, it is evident that trial court has found victim was 12-14 years as per doctor certificate. She has stated before Court that she does not know accused and seeing him first time, but thereafter she has categorically stated against the accused and admitted her statement under section 164-A Cr.P.C. she has stated her age as 16 years at the time of occurrence. PW Gayatri Devi, mother of victim, has been declared hostile. She has stated the age of victim as 15/16 years. PW Kunwa has also been declared hostile. Rests of witnesses are formal witnesses to various circumstances. Every person is presumed to be innocent, unless his guilt is established by competent court. First appeal is always considered as continuation of original trial. This court is already burdened with so many cases especially appeal; it will take time to hear the appeal.
12. In view of above, there is inconsistency with regard to age of victim; there is also dispute with regard to identity of accused as victim has said that she has seen accused first time in court. So I am of view that there is ground to suspend the sentence at this stage. Hence, sentence passed by court below is suspended. Accused/appellant shall be enlarged on bail subject to his furnishing of surety bond and personal bond of Rs.50,000/- (rupees fifty thousand) each subject to satisfaction of Registrar Judicial of this Court. Provided appellant shall not come in contact with complainant party; shall attend the court on each date; shall not leave jurisdiction of the court; shall report before concerned police station on the 1st day of each month till appeal is decided. In case of violation of any condition, prosecution or complainant may ask for cancellation of bail.
13. IA No.01/2018 stands disposed of.

(Sanjay Kumar Gupta)
Judge

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