R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
2 of 2021
In R/CRIMINAL APPEAL NO. 1756 of 2019
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NARAYAN @ NARAYAN SAI @ MOTA BHAGWAN S/O ASHARAM @ ASHUMAL HARPALANI Versus STATE OF GUJARAT ========================================================== Appearance:
LD.ADV.SANJIV PUNALEKAR AND LD.ADV.DHARMA RAJ WITH,MANAN V PATEL for the PETITIONER(s) No. MR R C KODEKAR WITH MS.C.M.SHAH ADDL.PUBLIC PROSECUTORS for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 11/08/2021 IA ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) Rule, returnable forthwith. Learned APPs waives service of notice of Rule for and on behalf of the respondent-State.
1. The applicant-convict has preferred this application under Section 389 of the Code of Criminal Procedure, 1973 for suspension of sentence handed over to him vide judgment dated 30.04.2019. The applicant was apprehended on 04.12.2013 in connection with I- C.R.No.31 of 2013 registered at jahangirpura Police Station, Surat.
2. The facts in concised form of prosecution are as follow:
2.1 The prosecutrix along with her family members in the year December, 2001 participated in the organized at the Aashram of Shri Asharam at Jahangirpura in Surat ('the Surat Aashram'). On the last day of the program the Page 1 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 applicant who is the son of Shri Asharam asked the prosecutrix to visit the Megh Nagat, a town in Jhabua District of Madhya Pradesh since an Aashram was to be built there and his satsang was also scheduled at Megh Nagar. The prosecutrix along with the other devotees reached Megh Nagar from Surat on an advice of the applicant.
2.2 She was thereafter asked to go to village named Ahiyari in Darbhanga District in Bihar to help as an administrator to construct an Aashram there. Accordingly, the prosecutrix and other devotees travelled to Ahiyari where the Aashram was being built.
2.3 After the Aashram was constructed, the applicant arrived for satsang. It is alleged that the applicant on the first day of satsang summoned the prosecutrix in his kutir of that Aashram. He had sexually molested her after calling her and as some persons were waiting outside she was allowed to go.
2.4 It is also the say of the prosecutrix that the prosexutrix travelled to various cities from Ahiyari at the instance of the applicant and for his work and in the last leg of her tour while returning to Surat, she participated in his program at Nalasopara at Greater Mumbai and then she went back to Surat.
2.5 The prosecutrix was asked to visit the Surat Aashram Page 2 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 the Kutir of the applicant. She was forced to indulge into the act of unnatural sex with the applicant, who also thereafter committed rape and allowed her to go.
2.6 It is also alleged that the applicant had asked the prosecutrix to go to Gambhoi situated at Himmatnagar tehsil of Sabarkantha District. She was entrusted the administration of Gambhoi and a couple of weeks later, she was summoned with another devotee D.W. 10 to his kutir. It is alleged that he also had called the prosecutrix and DW 10 and had engaged in polyamory, of course without consent of the applicant, by engaging himself in the act of sexual exploitation and rape simultaneously. She had left the Aashram in 2004 in frustration and humiliation because of the continued act of sexual exploitation multiple times, but, she had no courage to report this to anyone including her parents who were staunch followers of his or the police officers as she was petrified of the intimidating and highhanded behavior of the applicant, his father and other followers of Asharam. However, after the father of the applicant was apprehended, in connection with the FIR registered at Jodhpur at Rajasthan and his bail application had been dismissed by the Rajasthan High Court, she mustered the courage to lodge the FIR against the present applicant and reported in detail the repeated incidents of rape and unnatural sex committed by the applicant upon her.
Page 3 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 2.7 The FIR culminated into the chargesheet and then into the trial, which resulted in to punishment to the applicant and therefore, this application for suspension of sentence.
2.8 According to the applicant, the conviction is inherently vitiated because the learned Presiding Officer failed to take into consideration section 313 of the Code of Criminal Procedure. The grievance is made against the trial court that the learned judge failed to take into consideration the evidence in its entirety. He has also overlooked the deposition of DW 10. The judgment, according to the applicant, is palpably perverse because of the finding of conviction on a sole testimony of the raped victim, who preferred the very FIR after an unusually long gap. The Court also overlooked the fact that the conviction in rape case can be based on the sole testimony of the victim provided the testimony is of sterling quality. It is alleged that her evidence lacks credibility and force of truth. The delay of 11 years has not been explained and could not have been taken lightly by the Court concerned. The Court has overlooked and disregarded this unpardonable delay in reporting the crime of sexual assault and offence or rape.
2.9 According to the applicant, after the prosecutrix had left the Aashram in the year 2004, there is not a single incident reported of intimidation or a threat to the Page 4 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 prosecutrix by the applicant. These 11 years of delay has seriously prejudiced the case of prosecution irreparably and the Court has ignored this vital aspect giving undue emphasis to the other non essential aspects.
2.10 It is the say of the applicant that he has already spent almost 08 years in the jail since his arrest on 04.12.2013. He was on a couple of times released on temporary bail and also on a furlough leave. There has been no complaint nor any breach of terms and conditions.
2.11 It is further his say that prior to his arrest the applicant utilized his entire time in organizing various social, educational, economic and spiritual development activities. He shall also continue his welfare activities and any condition the Court may impose, he is willing to accept. Therefore, he has urged that the appeal may take a very long time to be concluded and hence, pending the appeal the judgment and sentence be suspended.
3. This Court has heard extensively learned advocates, Mr.Sanjiv Punalekar and Mr.Dharma Raj with Mr.Manan Patel and learned Additional Public Prosecutors, Mr.R.C.Kodekar with Ms.C.M.Shah.
3.1 It is emphatically urged by the learned advocate, Mr.Punalekar that the delay has been unpardonable and the same has not been explained anywhere. The Page 5 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 allegation of the prosecutrix that she had been exploited along with her sister has no basis as neither the sister of hers nor her family members has been examined in support of her version. He has also further urged that the medical evidence in the process was bound to get lost and that also is a major disadvantage to the defence. The defence all throughout has denied the allegations and has not even taken the theory of consent. It is emphatically urged that the applicant accused has never indulged into this act as he was a spiritual master and a reformer.
3.2 He has further urged that grant of bail during the pendency of appeal in such cases should be considered by the Court as his success in the appeal will never compensate the period he has undergone in the jail all these years.
3.3 According to the learned advocate, Mr.Punalekar, it is incomprehensible that somebody who has undergone, this kind of sexual exploitation would visit the Ashram once again for the work of insurance with her husband. He also questioned whether a word of mouth should prejudice the defence of the applicant to such an extent whereby the entire medical and other evidence gets lost by aflux of time and yet, the court would believe the prosecution. According to him, the applicant is paying the price for being the son of a noted saint and a reformist. He has also pressed into service the various decisions in support of his Page 6 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 arguments. Learned advocate, Mr.Punalekar has in detailed taken this Court through the deposition of the prosecutrix and those of other witnesses. He has attempted to urge that there are serious omissions and contradictions, which ought to be regarded by the Court.
4. Learned advocate, Mr.Punalekar has relied on the following decisions:
1 PREET PAL SINGH V. STATE OF U.P.
2020 (8) SCC 645
2 STATE OF H.P. V. GIAN CHAND
2001 (6) SCC 71
3 BUDHISATTWA GAUTAM V. SUBHRA
CHAKRBORTI
1996 (1) SCC 490
4 STATE OF PUNJAB V. GURMIT SINGH
1996 (2) SCC 384
5 SAJJAN KUMAR V.CBI
2010 (9) SCC 368
6 UDAI SHANKAR AWASTHI V. STATE OF U.P.
2013 (2) SCC 435
7 SRI NARAYAN SAHA V. STATE OF TRIPURA
2004 (7) SCC 775
8 BHARWADA BHOGINBHAI HIRJIBHAI V. STATE OF
GUJARAT
1983 (3) SCC 2017
9 KAMALANANATHA V. STATE OF T.N.
2005 (5) SCC 194
10 JAPANI SAHOO V. CHANDRA SHEKHAR MOHANTY
2007 (7) SCC 394
5. Per contra, learned Additional Public Prosecutor, Mr.R.C.Kodekar has also argued elaborately and has also pointed out the lengthy cross examination of the prosecutrix. He urged that she had been a witness of sterling quality. It is also unfortunate that she needed to Page 7 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 undergo for a protracted period cross examination. He has urged that the version of the prosecutrix as is quite well established alone is sufficient to believe happening of rape. It is also in supported by the statement recorded under Section 164 of the Code of Criminal Procedure. She adhered to the version and her testimony and is of unimpeachable character.
5.1 According to the learned Additional Public Prosecutor, Mr.R.C.Kodekar, the dissections which the applicant is desirous of from this Court can be done only at the time of final hearing of appeal. He has further urged that till the father of the present applicant was arrested with the huge following and some of the past instances, the prosecutrix could not have mustered the courage.
6. Having heard the learned advocates on both the sides and also on considering the application for suspension of sentence, Section 389 of the Code of Criminal Procedure would be worth while to be reproduced:
"389: 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.Page 8 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021
R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 (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.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."
7. The appellate court is given the discretion for the reasons to be recorded in writing, whereby it can suspend the execution of the sentence or order appeal against and if the person is in confinement can be released on bail or on his own bond. If the punishment is with death or imprisonment for life or imprisonment is for a term of not less then 10 years. Learned Additional Public Prosecutor is to be given an opportunity to show cause. In the instant case, as could be noticed from the decision of the trial Page 9 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 Court, the applicant is convicted for life imprisonment and therefore, the hearing of the learned Additional Public Prosecutor was necessary before this Court could decide the request for suspension of sentence, there are settled principles as to when the suspension of sentence can be directed.
7.1 The short note, which has been shared by the applicant side says that she was sexually exploited at Ahiyari village in Darbhanga District in Bihar, Surat and at Gambhoi village situated at Himmatnagar. The applicant has been convicted for the offence under 376 (2) (C) and 377 of the Indian Penal Code. It is also emphasised by the learned advocate for the applicant that another lady with whom the applicant have had a joint act of sexual exploitation committing rape on both of them, she has not been examined as a witness and in fact, she has been examined by the defence as a DW 10.
7.2 The Apex Court in case of Narendrakumar vs. State, reported in (2012) 7 SCC 171 has held that even in case of rape the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.It is no part of the duty of the defence to explain how in a rape case the victim and other witness have falsely implicated the accused. The prosecution cannot stand on the witness on the defence and no matter how much is the suspicion against the accused, the offence has to be established Page 10 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 beyond reasonable time.
"29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt."
7.3 Present case is of course a rape case, where the evidence of prosecutrix is very vital and it is for the prosecution to prove beyond reasonable doubt. The story and the version put forth since the FIR has been lodged after 11 years, obviously there would be no medical or forensic evidence to find out whether the prosecutrix is a truthful witness and reliable and a credible. It is the trial court, which should be finding it out. The Court is alleged not to have evaluated and opined on weak testimony of the prosecutrix. In case of Toran Singh vs. State of M.P., reported in (2002) 6 SCC 494 the Apex Court held thus:
"7. The substantial portion of the judgment of the trial court is contained in the narration of prosecution story and referring to the prosecution witnesses. We hardly find Page 11 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 evaluation, analysis or scrutiny of evidence in a proper perspective objectively. With regard to serious infirmities pointed out by the defence raising doubt of the prosecution case, the learned Sessions Judge has simply stated that he did not agree with such contentions. The trial court, in our view, was not right and justified in lightly brushing aside the infirmities and improbabilities brought out from the prosecution case, that too when the entire prosecution case rested on sole eye-witness, who was interested being the son of the deceased; more so in the absence of any corroboration of his evidence by other independent evidence on material aspects of the prosecution case. It is unfortunate that the High Court has simply endorsed the conviction and sentence passed by the trial court without objectively and satisfactorily scrutinizing and examining the evidence as a first court of appeal except narrating the prosecution case and referring briefly to the evidence of few prosecution witness. The reason recorded by the High Court is to be seen in para 10 of the judgment which reads:-
"Thus in the absence of plausible defence by the appellant and the fact that the deceased had stayed in the house of appellant and in the absence of the explanation as to the cause of death, the appellant is liable to be convicted. Deposition of PW-1 Puran inspires confidence and finds support from the medical evidence."
8.In the light of what we have stated above, we find it difficult to agree with the High Court as to how deposition of PW-1 Puran Singh inspires confidence. As is evident from the above para, the High Court instead of giving benefit of doubt to the appellant, placed the burden on the defence and found that there was absence of plausible defence and explanation by the appellant. The case of the prosecution should rest on its strength not on the absence of explanation or plausible defence by the accused."
7.4 The Apex Court has also held as to how to evaluate the testimony of the prosecutrix in a rape case in case of Hem Raj vs. State of Haryana, reported in (2014) 2 Page 12 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 SCC 395.
"6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it."
It is thus quite clear that the prosecutrix's evidence needs to be scrutinized carefully as that alone can lead to the belief as to whether her testimony is of sterling quality and whether sentencing upto life imprisonment is justifiable.
7.5 In case of Raja and ors vs. State of Karnataka, reported in (2016) 10 SCC 506 the Apex Court has cautioned against the mistake likely to be committed by the trial Court at the time of judicious scrutiny of the deposition of the prosecutrix in the following manner.
"34. This Court in Raju and Others Vs. State of Madhya Pradesh, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that Page 13 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non- consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
8. It is thus quite clear that the verdict, which has stood the test of time emphasises that the testimony of a victim of rape or non consensual physical assault needs to be accepted as true and unblemished; however, it would still to subject to judicious scrutiny lest a casual routine or an automatic acceptance would result in unwarranted conviction of the person charged.
9. In case of the State Of Punjab vs Gurmit Singh & Ors, reported in (1996) 2 SCC 384, the Apex Court held thus:
Page 14 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 " Before, parting with the case, there is one other aspect to which we would like to advert to.
OF late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
The Apex Court has referred to the decision in case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, reported in (1990) (1) SCC 550, where His Lordship Justice Ahmedi (as the then Chief Page 15 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 Justice) speaking for the Bench held that the prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act does not say that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
"16. We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a Judge. Such like stigmas have the potential of not only discouraging an even otherwise reductant victim of sexual assault to bring forth complaint for trial of criminals, thereby making the society to suffer by letting the criminal escape even a trial. The courts are expected to use self- restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole-where the victim of crime is discouraged- the criminal encouraged and in turn crime gets rewarded! Even in cases, unlike the present case, where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of "loose moral character" is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone had everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the Courts, for after all it is the accused and not the victim of sex crime who is on trial in the Court.
22. There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-Page 16 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021
R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence.
23. The alarming frequency of crime against women led the Parliament to enact Criminal Law (Amendment) Act, 1983 [Act 43 of 1983] to make the law of rape more realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a women under their custody or care. Section 114-A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended by addition of sub-sections 2 and 3 after re- numbering the old Section as sub-section (1). Sub-sections 2 and 3 of Section 327 Cr. P.C. provide as follows :
Page 17 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 Section 327. Court to be open -
(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376- B, Section 376-C or Section 376-D of the Indian Penal Code shall be conducted in camera:
Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.
(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court."
As the Apex Court has held in case of Gurmit Singh (supra), the Court cannot be oblivious of the fact that the rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The Court, therefore, has held that a murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The trial Courts have been assigned for greater responsibility while trying an accused on charges of rape. They are expected to deal with such cases with utmost sensitivity. The Apex Court has also directed the Courts not to be swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature. If evidence of the prosecutrix inspires confidence, the same shall need to be relied upon without seeking corroboration of her statement in material particulars. The broader probabilities of a case shall need Page 18 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 to be examined only if the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony. She is not an accomplice of the crime but an injured witness and that aspect can never be forgotten. The Court also has held that if there is a delay in lodging the FIR, the Apex Court has held that the Court lost sight of the fact that the prosecutrix is a village girl and student of X th class. The Apex Court has also heavily deprecated the approach of the Court to hold that the courts cannot overlook the fact that in sexual offences, delay in lodging the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family.
10. In the instant case, there has been exceptional delay of 11 years. The defence may rightly have a grievance of the lodgment of an FIR with an inordinate delay, but at the same time, prima facie when considered this delay has been well explained by the prosecution. It is not to be overlooked that it is not against the individual that the complaint has been made, but it is a mighty institution which was headed by the father of the present applicant, who himself have held a key position as a socio religious reformist and was being worshiped as a saint by thousands and such devotees with unshakeable faith were present in the entire country. She was a young lady, whose parents were dedicated devotees of Shri Asharam.
Page 19 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 The entire family had worshiped the duo, father and the son as their Gurus. After she and her sister have been subjected to the worst kind of sexual exploitation as can be seen from the evidence of prosecutrix, they had decided considering the might and strength of these persons not to open their mouth nor to voice any grievance against them. It is not the first time that such incident has happened in such institution and establishment. Unfortunately, those heading the Aashram are supposed to be in the position of loco parentis and guardians and then become the exploiters and perpetrators of crime. The lone voice of the female who is being exploited is not difficult to be silenced in the cacophony of devotion and dedication.
11. In the instant case, we could notice that the prosecutrix has given chronological details of every single event which eventually led to her sexual exploitation and repeated act of rape. She had difficulties to narrate without being chocked with undesired emotions and humiliation while recapitulating those horrified events of unnatural sex and sexual acts with multiple partners. She has been subjected to unbelievably long cross examination at the hands of the defence. It is unfortunate that some of the questions had been even permitted by the Court which are not only found in preliminary reading to be only unsustainable but are found to be wholly and totally irrelevant. We would be constrained to remind the Presiding Officers the findings and observations of the Page 20 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 Apex Court in case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain (supra) and that of Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors which emphatically lay down that the trial Court is not expected to record the evidence mechanically as a tape recorder and need to control the recording of evidence and cross examination must not be made the means of harassment and humiliation for victim while allowing the accused the latitude of exercise of its right to cross examination.
11.1 In the instant case, the trial court has noted at the number of times that the prosecutrix has broken down to the scorching cross examination that she had faced. It needs to be noted prima facie that all possible attempts made to assail her examination in chief appear to have failed as she had stood the ground firmly in the cross examination. Testing of a rape victim being the testimony of an injured eye witness, its sterling quality from overall examination is the clinching aspect.
12. This Court being conscious of the fact that this is a suspension of sentence after the applicant has been convicted and therefore, the presumption of innocence is presently not available to him even while noticing the fact that she is the sole witness who has given the testimony in a serious case. Her evidence is consistent in nature and there is no reason to doubt the same as she has stood the Page 21 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 test of detailed cross examination.
13. The decision of PREET PAL SINGH V. STATE OF U.P., reported in 2020 (8) SCC 645 which made the distinction between the grant of bail under Section 439 of the Code of Criminal Procedure in case of pre-trial arrest and suspension of sentence under Section 389 of the Code of Criminal Procedure which shall need to be referred to at this stage. In the earlier case, according to the Apex Court there may be a presumption of innocence which is 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. and Anr., reported in (2018) 3 SCC 22. 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. 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) of the Code of Criminal Procedure. The Court has also held that the discretion of Page 22 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 grant of suspension of sentence is to be exercised judicially and not in a casual manner. The Apex Court has gone to an extent of saying that it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.
"38. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re- analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail."
14. In case of STATE OF H.P. V. GIAN CHAND, reported in 2001 (6) SCC 71 there was a delay in lodgment of the FIR. The Apex Court held that it is not fetal to the proseuction's case but requires satisfactory explanation. Delay in filing the FIR in rape case is normal specially when the perpetrator is relative. Here, of course, the perpetrator is not a relative, but is held in a very high esteem not only by the prosecutrix but by the entire family and his social religious position in the society also was capable of surely detering the victim to come forward and ventilate her grievances of such intensity.
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15. In case of SHRI BUDHISATTWA GAUTAM V.
SUBHRA CHAKRBORTI, reported in 1996 (1) SCC 490 the Apex Court has held quoting Article 21 that the victim of the rape has a right to life and dignity, which includes the right to live with human dignity. The Apex Court has further held that the rape is a crime against the entire society and plight of rape victim in present legal system despite making the rule of corroboration of prosecutrix is not always necessary and introduction of Section 114 A in the Evidence Act is further highlighted the court also suggested the reforms in the society. The Court held that inspite of the decision of the Apex Court that corroboration of the prosecution was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of "consent" by the Courts who tried the offence of rape. To overcome this difficulty, the legislature intervened and introduced Section 114-A in the Evidence Act. The situation according to the Apex Court, has hardly improved. The fear has to be allayed from the mind of women so that if and when this crime is committed, the victim may promptly report the police and on a chargesheet being submitted, the trial may proceed speedily without causing any embarrassment to the prosecutrix who may come to the witness box without fear psychosis.
16. Other decisions pressed into service are not necessary for the Court to highlight as ration laid down in them are more or less covered in other decisions. Suffice Page 24 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021 R/CR.A/1756/2019 IA ORDER DATED: 11/08/2021 to note that here is the victim, who without the support of her parents, siblings or anyone else, except her husband and in laws has attempted to knock the doors of justice to upkeep her human dignity and to redress the humiliation suffered on number of ocassions and funied inside for 11 years. Because of the fear psychosis and the conduct of the applicant and his followers witnessed by her while associated and even when she refused to continue to be with Aashram, it deterred her for initiating any legal action. It is only after the father of this applicant was alleged of rape and other explotation in other matter and refusal of the grant of bail to the father of the present applicant, who was worshiped as a Guru, that she mustered the courage and also got confidence in the system because of the later events after the arrest of Shri Asharam. One may not miss making a mention of visit of many politicians at Aashram and her fear being fortified of his deep connections with political parties. The trial Court has believed her testimony to hold the applicant guilty. There are no compelling reasons or circumstances for the Court to grant the suspension of sentence in favour of the present applicant in wake of the discussion above.
17. However, considering the period of 08 years in the jail, the applicant's appeal needs to be posted for final hearing in the month of November, 2021. Let the paper- book, if has not already arrived at, be called urgently for by the Registry and once received, the electronic/physical version be shared with the learned advocate for the parties.
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18. With the above observations, present application is rejected. None of the findings and observations shall in any manner prejudice the right of either side as they are meant only for deciding the application for suspension of sentence, on the basis of prima facie findings.
19. Rule is discharged.
Sd/-
(SONIA GOKANI, J) Sd/-
(RAJENDRA M. SAREEN,J) M.M.MIRZA Page 26 of 26 Downloaded on : Wed Sep 08 21:46:57 IST 2021