Bombay High Court
Raj @ Harishankar Shukla vs The State Of Maharashtra And Anr on 8 June, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2704 OF 2021
IN
CRIMINAL APPEAL NO.1130 OF 2019
Raj @ Harishankar Shukla
Age 40 years, R/o. Dahila Mau
Post. Dahila Mau,
Dist. Pratapgad, Uttar Pradesh.
(Applicant is lodged in Nashik Road
Central Prison, Nashik. ...Applicant/Appellant
Versus
1. The State Of Maharashtra
(Through the Nerul Police Station,
vide their C.R. No.I-390 of 2016)
2. Jyoti Vijay Singh
Through her mother Poonam Vijay Singh
R/o. Aie Niwas Building, Room No.304,
Sector 6, Nerul, Navi Mumbai. ...Respondents
....
Mr. Niteen Pradhan a/w Mrs. Siddh Vidya a/w Ms. Shubhada Khot
a/w Ms. Sneha Jain a/w Ms. Kajal Bharadwaj a/w Mr. Danish Patel
i/by Siddh Vidya & Associates, Advocate for the Applicant/Appellant.
Ms. Priyanka Chavan, Advocate for Respondent No.2. (Appointed by
Legal-aid)
Mr. S. V. Gavand, APP for the Respondent No.1- State.
....
CORAM : PRAKASH D. NAIK, J.
RESERVED ON : 14th MARCH, 2022.
JUDGMENT PRONOUNCED ON : 8th JUNE, 2022.
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR Sajakali Jamadar 1 of 24
LIYAKAT Date:
JAMADAR 2022.06.08
18:12:13
+0530
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JUDGMENT :
1. The applicant is seeking directions under Section 391 of
Code of Criminal Procedure (for short "Cr.P.C.") to allow the applicant
to lead additional documentary and oral evidence by summoning
witnesses for examination and also to re-examine the prosecution
witnesses in Special Case No.70 of 2017.
2. The applicant has preferred Criminal Appeal No.1130 of
2019 challenging the judgment and order dated 9 th July, 2019 passed
by Special Judge under Protection of Children from Sexual Offences
Act, 2012 Act convicting him for offences punishable under Sections
376(f)(i)(n) and Section 506(II) of Indian Penal Code (for short
"IPC") and under Sections 4, 5 (f)(l) r/w Sections 6, 8 & 9(f) r/w
Section 10 of Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act'). For the offences punishable under Sections
376(f),(i),(n) of IPC and Section 5(f)(l) r/w Section 6 of POCSO Act,
the applicant has been sentenced to suffer imprisonment of ten years
and fine of Rs.25,000/-. For the offence under Section 506(II) of IPC,
the applicant is sentenced to suffer rigorous imprisonment of one
year and fine of Rs.5,000/-. For the offence under Sections 4 of
POCSO Act, the applicant is sentenced to suffer imprisonment for
seven years and fine of Rs.15,000/-. For the offence under Section 8
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of POCSO Act, the applicant is sentenced to suffer imprisonment of
three years and fine of Rs.10,000/-. For the offence under Section
9(f) r/w Section 10 of POCSO Act, he is sentenced to suffer
imprisonment for five years and fine of Rs.15,000/-. The substantive
sentences were directed to run concurrently.
3. The case of the prosecution is that the victim girl was
studying in 7th Standard. The accused was her teacher. In the Month
of September-2016, the mother of victim girl found that the victim
was vomiting and suffered from giddiness and missed her menstrual
cycle. The victim was taken to their family doctor. Doctor gave her
medicines. Thereafter, on 28th September, 2016, the victim girl was
taken to Gynecologist. She was examined and after conducting
requisite test, doctor had opined that the victim girl was pregnant.
The mother of victim girl inquired with her as to whether anybody
has committed wrong with her. The victim girl disclosed that, in the
month of April-2016, the accused had committed forceful penetrative
sexual assault. She was threatened that, if she discloses the incident
to anybody, the accused would kill her and all her family members.
She was frightened and could not disclose the incident to anybody.
Thereafter, the accused went away. The accused kept on threatening
her. In August - 2016, the accused again committed similar act in
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the ladies washroom. She was again threatened by him. Crime was
registered on the statement of the victim girl vide C.R. No.I-390 of
2016 with Nerul Police Station for offences under Sections 376(f)(i)
(n) and 506(II) of IPC and Sections 4, 5(f)(l)(j-ii), 6, 8, 9(f) and 10
of POCSO Act. Statements of witnesses were recorded. Accused was
arrested on 14th December, 2016 at Delhi. On completing
investigation, charge-sheet was filed.
4. The prosecution examined 18 witnesses. Statement of
the accused was recorded under Section 313 of Cr.P.C. Vide judgment
and order dated 9th July, 2019, the applicant was convicted.
5. Learned Advocate for the applicant Mr. Pradhan
submitted as follows :-
i. Gross injustice of not having appropriate legal assistance
and guidance is violative of Articles 21, 14 and 39-A of the
Constitution of India.
ii. Section 391 of Cr.P.C. empowers appellate Court to take
further evidence or direct it to be taken by the trial Court on the
ground that the evidence is essential for the just decision of the
case. This exercise can be done during pendency of appeal
instead of waiting till appeal is finally heard.
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iii. During the course of trial, although the applicant was
initially represented by the lawyer, during the time of recording
of evidence the cross of the prosecution witnesses was
conducted by the applicant himself in a criminal trial, where the
person is charged of a grave offence, the right of an accused to
have the services of the lawyer is fundamental and essential to a
fair trial. The entitlement to free legal aid is not dependent on
the accused making an application to that effect, the Court is
obliged to inform the accused of his right to obtain free legal-aid
and provide him with the same. This right is implicit in Article
22(1) and Article 39-A of the Constitution of India and Section
304 of the Cr.P.C. If the accused is not represented by the
pleader and does not have sufficient means, the Court is
required to assign the pleader for his defence at the expense of
the State. The Court is required to inform the accused of his
right to obtain legal aid. The proceedings before the trial Court
does not reflect that the Court had appraised the applicant of his
right to avail free legal aid to be appointed by the State.
iv. The applicant was unequipped with the modalities and
niceties of legal knowledge and experience, he was not at all
adequately skilled to prepare his defense and cross -examine the
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witness.
v. There was failure on the part of the prosecution to
examine relevant witnesses and/or to re-examine them in
accordance with Section 311 of Cr.P.C.
vi. In the case of Zahira Habibulla H. Sheikh and Another
V/s. State of Gujarat and Others1 it is observed that the
legislative intent in enacting Section 391 appears to be the
empowerment of the appellate court to see that, justice is done
between the prosecutor and the persons prosecuted and if the
appellate court finds that certain evidence is necessary in order
to enable it to give correct and proper finding, it would be
justified in taking action under Section 391. The courts have to
take a participatory role in trial. They are not expected to be
tape recorders to record whatever is being stated by the
witnesses. Section 311 of the Code and Section 65 of the Indian
Evidence Act confer vast and vide powers on presiding officers
of the Court to elicit all necessary material by playing an active
role in the evidence collecting process.
vii. The Investigating Officer, API, Vasudev More had
recovered CCTV footage of the premises of M.G.M. Law College,
which is located on the second floor of the M.G.M. School,
1 (2004) 4 SCC 158.
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where allegedly the second incident took place in August-2016.
The said CCTV footage of M.G.M. Law College was provided by
Dr. Geeta Shrivastava, the Principal of the M.G.M. Law College.
Vide letters dated 25th October, 2016 and 8 th November, 2016
API Vasudev More had requested the principal of M.G.M. Law
College to provide CCTV footage. Vide letter dated 26 th October,
2016, Principal Geeta Shrivastava had provided the CCTV
footage in pen drive as attachment and she had again confirmed
in writing on 8th November, 2016 that she had already provided
the footage to the Investigating Officer. These correspondence
is not exhibited. In the cross examination of PW-18 - Ashok
Rajput, Investigating Officer, who took over the investigation
from API Vasudev More on 10th December, 2016 has deposed
that though CCTV footage in the form of pen-drive was received
from the MGM Law College by API Vasudev More, the same was
not received by him viz. documents and the CCTV footage ought
to have brought on record. API Vasudev More and Dr. Geeta
Shrivastava should have been examined as witnesses by the
prosecution.
viii. The Investigating Officer had also obtained attendance
register of M.G.M. Law College, where the applicant was law
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student and had taken admission in the year-2015. The
document would indicate that the applicant was not attending
the Law College in August-2016. Dr. Geeta Shrivastava, the
Principal of M.G.M. Law College had forwarded the letter to
Senior Police Inspector, Crime Branch, Vashi, Navi Mumbai on
15th December, 2016, stating that, in the year - 2016, the
applicant had never attended college lectures and that he had
paid the fees in the August-2016 through online challan.
Considering allegations that accused committed sexual assault
on second floor, the alleged movement could have been brought
to light by producing CCTV footage recorded by API More.
ix. The prosecution examined two teachers of M.G.M.
School i.e. PW-7 and PW-14. In her evidence PW-14 has deposed
that she taught dance in M.G.M. School for two weeks. Only
one permanent teacher was examined by prosecution. The
prosecution examined students from the school and tried to
tarnish the character of the applicant. They also deposed that
the complaint was made about the behaviour of the applicant to
Supervisor Shilpa Madam. Mother of PW-8 also made
complaints, however, such complaints were not brought on
record. The prosecution did not examine Principal Ms. Savita
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Gulati or Supervisor Ms. Shilpa Madam. The alleged first
incident had happened during the period of physical education
in April-2016, while the victim was sitting in classroom. Name
of teacher is not disclosed. Hence, examination of principal
Savita Gulati was necessary.
x. Dr. Chetan Shyamlal Singhal conducted Sonography of
the victim girl and informed the police about her pregnancy.
Crime was registered by the Police. He is not examined by the
prosecution. In his statement recorded by the API Vasudev More
he has stated that when he asked the mother of victim the
person responsible for her pregnancy, she muttered something to
the effect 'cousin brother'. In his statement dated 10 th October,
2016, Dr. Chetan Shyamlal Singhal had stated that the victim
was four weeks pregnant when he had examined her on 29 th
September, 2016. In supplementary statement dated 11 th
January, 2017 he has stated that the victim was eight weeks
pregnant on 29th September, 2016. The Medical case papers of
the victim drawn up by Dr. Chetan Singhal which are part of the
charge-sheet also shows that the victim was eight weeks
pregnant at the time of her checkup on 29 th September, 2016.
Considering the allegations which is improbable that the victim
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could have been 4 weeks or 8 weeks pregnant on 29 th
September, 2016. Thus, the failure of prosecution to examine
Dr. Chetan Singhal had prejudiced the defence of the applicant/
accused.
xi. The blood samples were collected from the applicant and
the victim girl and sent for DNA analysis. The report shows that
the applicant is excluded to be the biological father of product of
conception of victim girl. The prosecution has failed to bring on
record FSL report of DNA analysis which can be used as
evidence during the trial. Report of DNA analysis can be used
as evidence in inquiry, trial or other proceedings in accordance
with Section 293 of Cr.P.C.
xii. Taking into considering the aforesaid circumstances, the
prosecution be directed to adduce the evidence of crucial
witnesses in accordance with Section 391 of Cr.P.C. or Section
311 of Cr.P.C. or the applicant be allowed to lead additional
evidence by summoning witnesses. This exercise may be done
by this Court or by the trial Court during the pendency of the
appeal of the applicant. It is further submitted that, since the
applicant is in custody for a period of about five & half years,
during the process of recording further evidence, the applicant
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may be directed to release on bail.
xiii. It is the duty of presiding officer to ensure to get best
possible evidence. Section 311 of Cr.P.C. empowers Court to
summon material witness, or examine person present. Any
Court may, at any stage of any enquiry, trial or other proceedings
under the Code, summon any person or examine any person in
attendance, though not summoned as a witness, or re-call and
re-examine any such person if his evidence appears to it to be
essential to the just decision of the case.
xiv. The CWC report was not taken on record. Statement of
victim recorded under provision of Juvenile Justice Act, not
adduced in evidence.
6. In addition to the decision referred to herein above the
learned counsel for the applicant has relied upon following
decisions :-
i. Hussainara Khatoon and Others V/s. Home Secretary,
State of Bhiar, Patna2.
ii. Asim @ Munmun @ Asif Abdulkarim Solanki V/s. State
of Gujarat passed by the Supreme Court dated 28 th January,
2020 in Special Leave Petition (Criminal) No.8087 of 2019.
iii. Rambhau & Another V/s. State of Maharashtra3.
2 (1980) 1 SCC 98.
3 (2001) 4 SCC 759.
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iv. Mohd. Hussain alias Julfikar Ali V/s. State (Fovernment
of NCT of Delhi)4
v. Ranchod Mathur Wasawa V/s. State of Gujarat5.
vi. Suk Das V/s. Union Territory of Arunachal Pradesh6.
vii. Madhav Hayawadanrao Hoskot V/s. State of
Maharashtra7.
viii. Olga Tellis and Others Vs. Bombay Municipal
Corporation and Others8
7. Learned APP Mr. Gavand submitted that the grounds
urged by the applicant are devoid of merits. There is no violation of
Articles 21, 22 or 39-A of the Constitution of India. There is no
breach of Section 304 of Cr.P.C. The applicant is educated person.
He filed pursis that he would conduct the cross examination himself.
He had engaged the Advocate to represent him. The Advocate
representing the applicant was present during examination of all the
witnesses. During the cross examination of prosecution witnesses,
although the Advocate was present in the Court, the applicant had
urged before the Court that he would himself cross examine the
witnesses. This fact has been recorded by the trial Court on every
occasion when the witnesses were cross examined on completion of
4 (2012) 9 SCC 408.
5 (1974) 3 SCC 581.
6 (1986) 2 SCC 401.
7 (1978) 3 SCC 544.
8 (1985) 3 SCC 545
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their examination-in-chief. It is not the case of the accused as urged
before this Court that he cannot afford to engage the Advocate and
that the State should provide him lawyer. During the trial he had
engaged the Advocate, who was supervising the proceedings and in
the presence of the Advocate at the instance of the applicant he was
permitted to cross examine. The applicant had cross examined the
victim girl at length. He also cross examined the mother of victim
girl. The cross examination was conducted in detail which does not
indicate that he was handicapped due to lack of knowledge of law or
he would not in a position to understand the proceedings before the
trial Court. He had himself decided to cross examine all the
witnesses. Thus, there is no violation of the right to legal-aid qua
the applicant. The prosecution had examined all the relevant
witnesses. The prosecution has proved its case on the basis of
evidence adduced before the trial Court. On the basis of evidence,
the applicant has been convicted by the trial Court. The applicant
has challenged the judgment of conviction before this Court by
preferring appeal. The appeal is pending before this Court for final
disposal. The applicant has urged that the present application may
be decided first pending appeal. No case is made out for re-
examination of witnesses or examination of new witnesses in exercise
of powers under Section 391 of Cr.P.C. or Section 311 of Cr.P.C. The
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applicant was completely silent till the trial is over and judgment of
conviction is delivered about the examination or re-examination of
such witnesses. He was not prevented from examining those
witnesses which he deemed fit and proper as defence witnesses. He
was under the advise of Advocate, who had present during the trial.
Hence, relief sought in this application be rejected. The applicant has
been convicted for serious offences. The prayer for bail as claimed by
the applicant may not be granted.
8. Learned Advocate for the respondent (victim) submitted
that, no case is made out for granting prayers made in this
application. No ground is made out for exercise of powers under
Section 391 of Cr.P.C. The accused had faced the trial. The victim is
suffering from trauma. The victim is minor. She was student in
school. The accused was her teacher. The prosecution has adduced
sufficient evidence on the basis of which the applicant has been
convicted. The victim cannot be subjected to trauma for indefinite
period by again asking her to appear before the trial Court for
additional evidence or prolonging the proceedings. Failure to
conduct DNA test of samples taken from the accused or to prove the
report of DNA profile would not result in failure of prosecution case,
though the positive result of DNA test would constitute clinching
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evidence against accused. If however result of test is negative i.e.
favouring accused or if DNA profiling had not been done or not
proved in a given case, weight of other material and evidence on
record will still have to be considered. The conviction may be
possible on remaining evidence.
9. She relied upon the following decisions :-
i. Delhi Domestic Working Womens' Forum V/s. Union of
India and Others9.
ii. Sunil V/s. State of Madhya Pradesh10.
iii. Kurshaidan & Another V/s. State of Punjab11.
iv. Dashrath S/o Hiraman Johare V/s. State of Maharashtra
decided by this Court by order dated 14 th July, 2020 in Criminal
Application No.392 of 2020.
v. Dashrath V/s. State of Maharashtra12.
10. The factual matrix indicate that the victim girl is minor
student, who has been allegedly subjected to sexual assault by the
accused. The FIR was registered with concerned Police Station for
offences referred to herein above. Investigation proceeded. The
application was arrested on 14th December, 2016. He had preferred
an application for bail before this Court which was rejected by order
9 (1995) 1 SCC 14.
10 (2017) 4 SCC 393
11 2013 SCC Online P&H 20517.
12 2021 SCC OnLine Bom 2921.
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dated 26th July, 2017. The applicant also preferred Writ Petition No.
6235 of 2019 which came up for hearing on 17th December, 2019.
The order dated 17th December, 2019 passed by the Division Bench of
this Court. The said order mentions that, it was pointed to the Court
that the petitioner seeks leave to appear in person to demonstrate
that he has been wrongfully convicted in a false case. He had
preferred an appeal before this Court. He also preferred Writ Petition
No.77 of 2018 before this Court. The Court directed that said
Petition be listed along with appeal preferred by the applicant.
Thereafter, Writ Petition No.6265 of 2019 along with Criminal Appeal
No.1130 of 2019 was listed before the Division Bench of this Court
on 10th January, 2020. The order dated 10 th January, 2020 mentions
that the appeal was filed by the appellant through Advocate and now
wants to argue that appeal in person. The registry was directed to
hold inquiry as per law to find out whether the appellant can be
permitted to appear in person.
11. During the trial the prosecution had examined about 18
witnesses. Learned APP has brought to the notice of this Court that
the Advocate representing the applicant before the trial Court had
filed Vakalatnama to represent him in Special Case No.70 of 2017.
The vakalatnama was signed by the applicant. It bears endorsement
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of Superintendent of Jail, where the applicant was detained. After
recording the examination-in-chief of witnesses they were cross
examined. PW-1(victim girl) was examined on 7 th August, 2018. She
has been cross examined by the applicant in person. The cross
examination is conducted in detail. PW-2 is the mother of victim girl.
The examination-in-chief of this witness was recorded on 27 th August,
2018. On completing the examination-in-chief, the trial Court has
recorded that Advocate Smt. Prajakta Deshmukh is present before the
Court for the accused. However, the accused wants to cross examine
the witness himself. On perusal of Vakalatnama signed before the
trial Court on 13th October, 2017 which was filed before the trial
Court it is noted that the said vakalatnama was signed by Advocate
Prajakta Deshmukh. Thus, the applicant was represented by
Advocate, who was present before the trial Court when the evidence
of witnesses was recorded. In spite of that the applicant had urged
before the trial Court that he wants to cross examine the witness
himself. He conducted lengthy cross examination of witnesses in the
presence of his Advocate. It is further noted that pursis was filed
before the trial Court (Exhibit-78) on 7th August, 2018 which is
brought to the notice of this Court by learned APP. In the said pursis
it was mentioned that the matter is kept for examination-in-chief and
the accused is himself going to conduct the cross examination even
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though he has engaged the lawyer, pursis were signed by applicant
and his Advocate. The applicant/accused then proceeded to conduct
lengthy cross examination of PW-2. PW-3 is the panch witness. He
has been cross examined by applicant himself. PW-4 is the child
witness. She is the student of the same school. She had deposed that
the accused used to tell them dirty jokes. The trial Court has recorded
that Advocate Prajkta Deshmukh is present before the Court on
behalf of the accused, however the accused submitted that he himself
wants to cross examine the witness and he proceeded to cross
examine the witness. PW-5 is the panch witness. After making the
similar note as above, the accused conduced cross examination of the
witness. Subsequently the evidence of PW-6 panch witness, PW-7 -
teacher from the school, PW-8 & 9 students of the school, PW-10, PW-
11, Medical Officer, PW-12, PW-13, PW-14, PW-15, PW-16, PW-17 &
PW-18, the Court has noted that whenever the cross examination was
conducted, the Advocate was present and the accused insisted that he
would himself cross examine witnesses and proceeded to cross
examine them. Thus, although the Advocate representing accused is
present through out the trial when the evidence of witnesses was
recorded, during the cross examination, the applicant insisted to
cross examine himself and conducted cross examination. It is
pertinent to note that the applicant is educated person and on his
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insistence and in the presence of his advocate he had cross examined
the witnesses. Question of depriving him of his right of his legal-aid
or breach of Section 304 of Cr.P.C. is ruled out.
12. Section 304 of Cr.P.C. reads as follows :
"304. Legal aid to accused at State expense in certain cases.
(1) Where, in a trial before the Court of Session, the accused
is not represented by a pleader, and where it appears to the
Court that the accused has not sufficient means to engage a
pleader, the Court shall assign a pleader for his defence at the
expense of the State.
(2) The High Court may, with the previous approval of the
State Government, make rules providing for-
(a) the mode of selecting pleaders for defence under sub-
section (1);
(b) the facilities to be allowed to such pleaders by the
Courts;
(c) the fees payable to such pleaders by the Government,
and generally, for carrying out the purposes of sub-
section (1).
(3) The State Government may, by notification, direct that, as
from such date as may be specified in the notification, the
provisions of sub- sections (1) and (2) shall apply in relation
to any class of trials before other Courts in the State as they
apply in relation to trials before Courts of Session."
13. The other question which is raised by the applicant that
several witnesses were examined by the prosecution. Documentary
evidence was not adduced in evidence. Once again it is required to
be noted that the trial was conduced in the presence of the accused
as well as Advocate representing him. It was open to the
applicant/accused to examine the witnesses as defence witness. Such
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an application was never made. The statement was recorded under
Section 313 of Cr.P.C. He did not urge that he wants to examine any
defence witnesses. After his conviction, the submission is made that
there is failure on the part of the prosecution to examine several
witnesses and their evidence be recorded by issuing directions to
prosecution or that the applicant be permitted to examine those
witnesses. The contention of the applicant is obviously after thought
which cannot be accepted.
14. The prosecution adduced evidence of victim girl,
students from the school, mother of victim girl and other witnesses.
Witness API - Vasudev More had limited role. The prosecution had
examined witnesses before the trial Court, who were cross examined
by the accused. The trial Court has opined that their evidence is
sufficient to establish the offences against the applicant. In the facts
and circumstances of this case, the prayers sought in this application
cannot be granted.
15. In the case of Hussainara Khatoon and Others V/s. Home
Secretary, State of Bihar, Patna (supra) it was observed that right to
free legal-aid is implicit in Article 21 without which the procedure
cannot be said to be reasonable, fair and just. The Court referred to
Article 39-A of the Constitution of India. In the case of Zahira
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Habibulla H. Sheikh and Another V/s. State of Gujarat and Others
(supra) the Hon'ble Supreme Court had observed that the powers
under Sections 311 & 391 of Cr.P.C. are required to be exercised for
just decision of the case. In the case of Asim @ Munmum @ Asif
Abdulkarim Solanki V/s. State of Gujarat (supra) the Court had
considered powers under Section 391 of Cr.P.C. It was observed that
Section 391 of Cr.P.C. does not impose any restriction as to when the
application filed for adducing additional evidence should be heard by
the High Court. It is desirable that the application filed under
Section 391 should be heard immediately after it is filed without
waiting for the appeal to be finally heard. In the case of Rambhau &
Another V/s. State of Maharashtra (supra) it was held that additional
evidence can be taken to rectify any irregularity. In the case of Mohd.
Hussain alias Julfikar Ali V/s. State (Fovernment of NCT of Delhi)
(supra) it was observed that the demand of justice to be hallmark of
appellate court's order directing retrial Court has to ensure that
accused gets fair trial but at same time no guilty person goes scot
free. In the case of Ranchod Mathur Wasawa V/s. State of Gujarat
(supra) it was observed that indigence should never be a ground for
denying fair trial or equal justice. In the case of Suk Das V/s. Union
Territory of Arunachal Pradesh (supra) it was held that fundamental
right of an indigeut accused to be provided with, held, cannot be
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denied on his failure to apply for free legal-aid. In the case of
Madhav Hayawadanrao Hoskot V/s. State of Maharashtra (supra) it
was observed that the procedure established by law in Article 21
means procedure which is fair and reasonable. In the case of Olga
Tellis and Others Vs. Bombay Municipal Corporation and Others 13 it
was observed that Article 39-A must be recorded equally fundamental
in interpreting and understanding the meaning and content of
fundamental right. The ratio in the aforesaid decisions is not
applicable to the facts of this case.
16. In the case of Delhi Domestic Working Women's Forum
V/s. Union of India and Others (supra) it was observed that it is
unfortunate that there has been an increase in violence against
women causing serious concern. Rape does indeed pose a series of
problems for the criminal justice system. There are cries for harshest
penalties, but often times such crises eclipse the real plight of the
victims. Rape shakes the foundations of the lives of the victims. For
many, its effect is a long term one, impairing their capacity for
personal relationships, altering their behaviour and values and
generating endless fear. In addition to the trauma of the rape itself,
victims have had to suffer further agony during legal proceedings. In
the case of Kurshaidan & Another V/s. State of Punjab (supra) it was
13 (1985) 3 SCC 545
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observed that the victim was minor. There was no reason for her to
falsely implicate the accused. The accused were unable to bring any
material to show that the victim's father had any animosity against
the accused. No father can stoop so low so as to bring forth false
charge of rape with a view to take revenge from the accused. There
is no material to discard the prosecution story. In the case of
Dashrath S/o Hiraman Johare V/s. State of Maharashtra vide order
dated 14th July, 2020 passed by this Court it was observed that the
purpose of DNA test is different and even if it has come in negative, it
does not rule out that the accused never committed forcible sexual
intercourse on the victim. The said order was passed while rejecting
the application for suspension of sentence. The said appeal was
subsequently heard by the Court and vide judgment and order dated
9th September, 2021, the appeal was dismissed by relying upon the
evidence of the victim girl and other evidence.
17. In the present case as stated herein above there is no
breach of Section 304 of Cr.P.C. or violation of fundamental right of
the accused in any manner. In the facts of the case it is noted that the
prosecution has adduced sufficient evidence before the trial Court on
the basis of which the applicant has been convicted. It is not
warranted to make any observations on the merits of the case since
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the appeal preferred by the applicant challenging the judgment of
conviction is pending. On analyzing the judicial proceedings referred
to herein above, I do not find that case is made out for recording
additional evidence in exercise of power under Section 391 of Cr.P.C.
or recall/re-examination of witnesses. The submissions advanced on
behalf of the applicant thus deserves to be rejected. The contention of
learned counsel for applicant that, during the process of recording
further evidence, the applicant be granted bail is turned down. The
applicant however is at liberty to pursue his application for
suspension of sentence and grant of bail pending before this Court.
18. Hence, I pass the following order :
ORDER
i. Interim Application No. 2704 of 2021 stands rejected
and disposed of accordingly.
ii. Interim Application No.185 Of 2021, Interim Application
No.1368 Of 2021, Interim Application No.685 Of 2019 in
Criminal Appeal No. 1130 Of 2019, Criminal Writ Petition No.
77 Of 2018 and Criminal Writ Petition No. 6235 Of 2019 are
kept pending with Criminal Appeal No.1130 of 2019.
(PRAKASH D. NAIK, J.)
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