Jammu & Kashmir High Court
Varun Chandan vs Ut Of J And K on 31 December, 2021
Sr.No. 17
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl A(S) 21/2021
CrlM No. 2419/2021
CrlM No. 2438/2021
Reserved on: 29-12-2021
Pronounced on : 31-12-2021
Varun Chandan ....Petitioner/Appellant(s)
Through :- Sh. P.N Raina, Sr. Advocate with
Sh. J. A Hamal, Advocate
V/s
UT of J and K ....Respondent(s)
Through :- Sh. Bhanu Jasrotia, GA
Sh. Aseem Sawhney, Advocate
Coram: HON'BLE MR. JUSTICE MOHAN LAL MANHAS, JUDGE
O R D E R
31. 12. 2021
1. Instant criminal appeal under Sec. 410 Cr.PC is directed against judgment
of conviction dated 20.12.2021 and order of sentence dated 21.12.2021
rendered by the Court of ld. Principal Sessions Judge Rajouri in file No.
04/Challan titled "State v/s Varun Chandan" where under appellant/ convict
has been found guilty of commission of offence u/s. 363 RPC and
sentenced to imprisonment of three (03) years and also fine in the sum of
Rs. 25,000.
2. Feeling aggrieved of the impugned judgment of conviction,
appellant/convict has assailed it‟s correctness, propriety and legality on the
grounds, that as a result of miss-appreciation of facts and misapplication of
law so far as the finding of the trial court relating to holding appellant guilty
of having committing of offence under Section 363 RPC and convicting
him of the same is bad in the eyes of law; that the trial court has held that
neither offence under Section 376 RPC nor offences under Section 67/67-B
of the IT Act have been proved against appellant/accused by the
prosecution, but the trial court suddenly from nowhere held in Para 62 of
the judgment that appellant is guilty of kidnapping the prosecutrix and used
the very expression, "kidnapping by misleading one"; the statement of
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prosecutrix which is itself a self-contradictory would indicate the alleged
story of kidnapping as no such allegation was even legally made which
would tantamount to kidnapping in the case, and even the prosecution has
not established the minority of the prosecutrix; that the promise made by
one Arun Sapotra with the prosecutrix in her childhood to marry her could
not materialize which had become the basis for alleged prosecution story
and even the said Arun Sapotra has been acquitted by the ld. Juvenile
Court; that no case was made out by the prosecution, yet the trial court from
nowhere held appellant guilty of offence under Section 363 RPC.
3. Alongwith the appeal, appellant/convict has filed an application under
Section 426 Cr.PC for suspension of conviction & sentence pending the
hearing of appeal, with further prayer for ordering his release on bail.
4. Victim/prosecutrix through her counsel has sought permission for
intervention in the aforesaid appeal/application for suspension of sentence
and for grant of bail. In view of the contents of the application and no
objections stated by Ld. Counsel for appellant in the court, the prayer for
intervention is allowed. Victim/prosecutrix through her counsel has
opposed the application for suspension of sentence and for grant of bail to
appellant/convict on the grounds, that the victim/prosecutrix is helpless
victim of rape and kidnapping at the hand of convict alongwith one Arun
Sapotra (declared juvenile wrongly) and her life has been ruined by the
convict and other co-accused since at the time in the year 2011 when she
was nearly 12 years of age and the accused ravished her; that after the
investigation and presentation of the challan/charge sheet on 22.04.2012
after a period of 09 years, ld. trial court delivered the verdict whereby Ld.
trial court convicted appellant/convict under Section 363 RPC only,
however, let off/acquitted the accused for commission of offences under
Section 376 RPC r/w Section 67/67-B of the IT Act against which victim is
filing a separated appeal which is permissible under law; that the victim has
also filed a separate revision petition against the co-accused Arun Sapotra
which is pending sub-judice before this court bearing No. CRR 22/2018
titled "Miss K v/s Arun Sapotra"; that not only her CD was prepared but
she was blackmailed for the CD and was raped and exploited by the convict
and the co-accused, whereby, the CD was later on made viral and the clips
were shared on the social media in the shape of MMS thus causing
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immense damage to the life, reputation and character of the
prosecutrix/applicant; that the impugned judgment rendered by the trial
court is legally wrong and perverse for the reasons that the case was for
commission of offence under Section 376 RPC which was clearly made out
from the deposition of prosecutrix, and even the applicant/prosecutrix was
minor, whereby, the provisions of law pertaining to minor including the
relevant sections of the RPC were attracted, but the Ld. trial court
completely ignored that facts and evidence and adopted a very casual
approach in such a serious case and rendered a light and soft punishment of
three (03) years whereas the girl‟s entire life, honor, character, dignity,
reputation, body and soul has been ravished and plundered; that the
complainant/victim is fully entitled to oppose the bail of the accused; prayer
has been made for rejection of the application for suspension of sentence
and granting of bail.
5. Sh. P.N Raina, Ld. Sr. Counsel for appellant/convict to support the case of
appellant/convict for suspension of his sentence of conviction and his
released on bail, has strenuously argued, that the prayer for suspension of
sentence of conviction and ordering of the appellant/convict on bail should
be considered liberally unless there is any statutory restriction. It is argued,
that when the sentence is of life imprisonment, the consideration for
suspension of sentence should be of different approach, and when the
appellate court finds that due to practical reasons, the appeal could not be
disposed of expeditiously, the appellate court must bestow special concern
in the matter of suspending the sentence so as to make the appeal right,
meaningful and effective, but if for any reason the sentence of limited
duration cannot be suspended, every endeavor should be made to dispose of
the appeal on merits. It is further argued, that by the judgment and order
of this court passed in "Vajida Bano and ors v/s State in CrlA (S) No.
05/2019, CrlM No. 853/2019" it is manifest, that even the sentence of ten
(10) years rigorous imprisonment was suspended against the accused
persons who were found guilty for commission of offences u/ss 364/120-
B/201 RPC. It is vehemently argued, that in the case in hand,
appellant/convict has only been sentenced for commission of offence u/s
363 RPC up to imprisonment of three (03) years which is a fit case for
suspension of sentence and for his release on bail. To support his
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arguments, Ld. counsel has relied upon the judgments reported in, (i)
(1999) 4 Supreme court Cases 421 (Bhagwan Rama Shinde Gosai and
others--Appellants versus State of Gujarat--Respondents) & (ii)
judgment/order of J&K High Court rendered in CrlA (S) No. 05/2019
CrlM No. 853/2019 (Vajida Bano and Ors v/s State).
6. Sh. Aseem Sawhney Advocate with Sh. Bhanu Jasrotia, (GA) Per Contra,
have strenuously articulated arguments, that the victim/prosecutrix is a
helpless victim of rape and kidnapping at the hands of convict along with
co-accused Arun Sapotra as at the time of occurrence in the year 2011 the
prosecutrix/applicant was only having age of 12 years who was exploited
and ravished by the convict and the co-accused. It is argued, that the trial
court has restricted itself in appreciating the evidence of prosecutrix and
other evidence on the record, whereby, the trail court only convicted the
accused for commission of offence under Section 363 RPC while acquitting
him for commission of offences u/s 376 RPC r/w Sections 67/67-B of the
IT Act. It is further argued, that from the deposition of the prosecutrix, a
clear case of commission of rape under Section 376 RPC and for the
preparation of her CD and exploiting her on clips, offences under Section
67/67-B of the IT Act also stand proved, however, the trial court has failed
to appreciate the evidence, and has adopted very casual approach by
handing down a very light and soft punishment upon the convict for three
(03) years. It is vehemently argued, that the entire life, honor, character,
reputation, dignity, body and soul of prosecutrix has been ravished and
plundered by the appellant/convict, even the discrepancy is in the statement
of prosecutrix should not, unless the discrepancies are such which are of
fatal nature, be allowed to throw out and otherwise reliable in prosecution
case, rape is not merely a physical assault but 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, and it is the bounding duty of the courts to 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 and if the evidence of prosecutrix inspires confidence, it must
be relied upon without seeking corroboration of her statement in material
5 Crl A(S) 21/2021
particulars, the testimonies 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, and prayer for rejection of suspension of sentence and grant
of bail has been made. To buttress their arguments, Ld. Counsel have
relied upon the rulings reported in (i) 2004 Supp (3) SCR 132 (State of
Haryana v/s Hasmat); (ii) (Bholu v/s State of U.P, Crl. Misc. Application
No. 124973 of 2017) & (iii) (Mahesh Pahade v/s The state of Madhya
Pradesh, Crl. Appeal No. 933/2014 order on IA No. 6367/2017).
7. Heard & considered. Section 389 of Code of Criminal Procedure deals
with the provisions of suspension of sentence pending the appeal. For the
sake of convenience Sec. 389 Cr.PC is reproduced hereunder:-
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:
[Provided that the Appellate Court shall, before releasing on bail
or on his own bond a convicted person who is convicted of an
offence punishable with death or imprisonment for life or
imprisonment for a term of not less than ten years, shall give
opportunity to the Public Prosecutor for showing cause in
writing against such release:
Provided further that in cases where a convicted person is released
on bail it shall be open to the Public Prosecutor to file an
application for the cancellation of the bail.]
(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,
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
6 Crl A(S) 21/2021
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.
Cursory glance of Section 389 Cr.PC makes the legal proposition
abundantly clear, that pending an appeal preferred by a convicted person
notice shall only be issued to the Public Prosecutor/State in case the convict
is punished for offences punishable with death or imprisonment for life or
imprisonment for a term not less than ten (10) years, which clearly connote
that if the convict is punished with imprisonment for a term less than 10
years no notice is required to be given to the Public Prosecutor/State in
regard to the application filed by the convict/accused for suspension of his
sentence and his release on bail.
In the case of BHAGWAN RAMA SHINDE GOSAI AND
OTHERS--Appellants Versus STATE OF GUJARAT--Respondent
[(1999) 4 Supreme Court Cases 421], relied by Ld. Counsel for
convict/accused, Hon‟ble Supreme Court while discussing the power and
scope of section 389 Cr.PC regarding suspension of sentence pending the
appeal filed by the convict, and while holding that the prayer for suspension
of sentence should be considered liberally unless there is any statutory
restriction, and while suspending the sentence and directing
appellant/accused/convict to be released on bail found guilty for
commission of offences u/ss 392 r/w 397 IPC for rigorous imprisonment of
10 years by the trail court, in paras 3&4 of the judgment held as under:-
3. When a convicted person is sentenced to fixed period of sentence and
when he files appeals 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 of suspending the sentence. So as to
7 Crl A(S) 21/2021
make the appeal right meaningful and effective. Of course appellate
courts can impose similar conditions when bail is granted.
4. 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 4.00p.m. and 6.00 p.m. until disposal of the appeal pending
before the High Court.
Ratio of the judgment (Supra) makes it manifest, that Section 389 Cr.PC
does not contain any „statutory restriction‟ in suspension of sentence and
granting of bail to the accused/convict and the prayer should be considered
liberally and the Appellate Court may impose restrictions considering the
gravity of offence.
Similarly, in the case of Vajida Bano and Ors--
Petitioner(S) V/s State Through Advocate General--Respondent(S)
[His Lordships, Hon‟ble Mr. Justice Ali Mohd Magrey of J&K High Court]
while relying upon the judgment of BHAGWAN RAMA SHINDE
GOSAI‟S (Supra) suspended the sentence of appellant/convicts, convicted
and sentenced in FIR 09/2014 for commission of offences u/ss 363/317/
302/ 120-B & 201 RPC of P/S Kargil.
In the case of State of Haryana Vs Hasmat (decided by
Hon‟ble Supreme Court of India on 26th July 2004 in Appeal Crl. 715-717
of 2004), relied by Ld. Counsel for respondent/victim, Hon‟ble Supreme
Court set aside the order of Punjab & Haryana High Court regarding the
suspension of sentence and enlargement of accused/convict on bail
convicted for commission of offences u/ss 148/302/307/324 r/w Sec. 149 of
IPC r/w 25/27 Arms Act on the ground of seriousness of offence wherein
the relevant facts like the „nature of acquisition‟ „the manner in which crime
was committed‟, „the gravity of offence‟ and the desirability of releasing
the accused on bail after they were convicted for committing serious
offence of murder, and the said aspects were not considered by the High
Court which passing the impugned order of suspension/bail.
In the case of Bholu Vs State of U.P. (Crl. Misc. Application
No. 124973 of 2017) decided by Allahabad High Court on 04-05-2018
relied by Ld. Counsel for respondent/victim, Hon‟ble Allahabad High Court
8 Crl A(S) 21/2021
rejected the 1st and 2nd bail applications of accused/appellant/convict even
though he was in jail for 9 years on the ground that the appellant/convict
was convicted for heinous offence of 2 murders.
In another case relied by Ld. Counsel for victim/prosecutrix
titled Mahesh Pahade -Appellant Versus State of Madhya Pradesh--
Respondent) [Criminal Appeal No. 933/2014 decided on 18th July 2018]
the Division Bench of Madhya Pradesh High Court relaying upon the
plethora of decisions of Hon‟ble Supreme Court viz; 1. (2018) 3 SCC 187
(Lachhman Dass vs. Resham Chand Kaler and Another); 2. (2016) 6 SCC 699
(Amanullah and Another vs. State of Bihar and others); 3. (2009) 6 SCC 767
(National Human Rights Commission vs. State of Gujarat and others);4. (2006) 3
SCC 374 (Zahira Habibullah Sheikh and another vs. State of Gujarat and others);
5. (2001) 6 SCC 338 (Puran etc. vs. Rambilas and another etc.); 6. (2000) 2 SCC
391 (R. Rathinam vs. State by DSP); 7. (1980) 3 SCC 141 (P.S.R. Sadhanantham
vs. Arunachalam and another); 8. (1979) 4 SCC 719 (Rattan Singh vs. State of
Punjab), held, that the victims of heinous crime cannot be denied the right
to address their grievances before the court of law. In the decision (Supra)
Hon‟ble Madhya Pradesh High Court held, that Section 372 of Code of
Criminal Procedure gives right to victim to file an appeal against order of
conviction which clearly gives right to the prosecutrix a victim of heinous
crime on her person to approach the court for cancellation of bail. The case
laws relied upon by Ld. Counsel for respondent/victim only lay down an
invariable principle of law that in cases punished with imprisonment of less
than ten (10) years even no notice is required to be given to the State/Public
Prosecutor, however, in heinous offences like that of murders u/s 302 IPC,
the court has the power/jurisdiction to grant or refuse the suspension of
sentence and bail. In the case in hand, appellant/convict has been found
guilty by the trial court of Pr. Sessions Judge Rajouri for commission of
offence only u/s 363 IPC for which appellant/convict has only been
sentenced for 3 years imprisonment. Vide ratio of the judgment of
―Bhagwan Ram Shinde Gosai's and others case‖ (1999) 4 Supreme
Court Cases 421 (Supra), relied by Ld. Counsel for appellant/convict, there
is no statutory restriction/prohibition in not considering the application for
suspension and releasing of appellant/convict on bail. Appellant/convict is a
resident of Dhani Dhar Rajouri, has deep roots in the society, and therefore,
does not possess the golden wings to flee from justice, as nothing
9 Crl A(S) 21/2021
substantial has been brought before the notice of this court that
appellant/convict has absconded during trial. Offence u/s 363 IPC is not
grave in nature and is only punishable upto maximum imprisonment of 7
yrs, however, the trial court has handed down imprisonment of 3 yrs upon
him. The seriousness or gravity of offence is to be seen in cases where
accused/convict is punished with death penalty, life imprisonment or
imprisonment of 10 years and above, wherein, while considering the
application for suspension and bail the judicial description lies in the
wisdom of the court. Right to life and liberty of an individual is precious
under Article 21 of the Constitution of India and is also a very valuable
right of accused/convict which also continues during the appeal period as
appeal is the continuation of the trial. No doubt the dignity, honor and
respect of victim/prosecutrix of crime is of paramount importance, but the
quantum of punishment inflicted upon the convict has to be taken in
consideration while deciding the application for suspension of sentence and
bail. As the appellant/convict is handed down punishment of only 3 years
for commission of offence u/s 363 IPC, as a sequel to the aforesaid
discussion, I am of the considered opinion, that appellant/convict has made
out a strong case for suspension of sentence and grant of bail in his favour.
I, therefore, suspend the sentence inflicted upon the appellant/convict and
direct him to be released on bail by executing surety bond in the sum of Rs.
50000/- to the satisfaction of Registrar Judicial of this court with the
direction to furnish personal recognizance of like amount before
Superintendent District Jail Dhangri Rajouri where the appellant/convict is
presently serving the sentence term in judicial lockup. It is further ordered,
that the appellant/convict shall appear before this court on each and every
date of hearing except for the reasons beyond his control.
8. Appeal Crl A(S) 21/2021 is taken on board.
9. Admit.
10. Call for original record from the trial court.
11. For arguments, list after vacations on 15-03-2022.
Jammu (Mohan Lal Manhas)
31-12-2021 Judge
Manan
