Amit Kumar Agarwal S/O ... vs State Of Rajasthan
2021 Latest Caselaw 7420 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

     S.B. Criminal Misc. SOS (Bail) Application No.1153/2021

                                       In

              S.B. Criminal Appeal No. 1868/2021

Amit Kumar Agarwal S/o Satyanarayan @ Satish Kumar Agarwal,
Aged About 27 Years, Resident Of 62 Street No 1, Near Gautam
Hospital, Savera Estate, Rajendra Park, Gurgaon (Haryana).
(Accused Confined In Central Jail, Alwar)
                                                         ----Accused/Appellant
                                   Versus
State Of Rajasthan, Through Public Prosecutor
                                                                ----Respondent

For Appellant(s)         :     Mr. Kapil Gupta
For Respondent(s)        :     Mr. Yashwant Kankhedia, PP
                               Mr. Ashvin Garg with
                               Mr. Gurvindra Singh



        HON'BLE MR. JUSTICE MANOJ KUMAR VYAS

                                    Order

09/12/2021

Heard on application for suspension of sentence.

The appellant has filed the appeal along with application for

suspension of sentence.

This appeal has been preferred against the judgment dated

11.11.2021 passed by the Court of Special Judge, POCSO Act,

2012 and Commission for Protection of Child Rights Act, 2005,

No.3, Alwar in Sessions Case No.03/2019, by which the appellant

has been convicted under Section 376 of IPC and sentenced to

maximum term of seven years.

(2 of 5)

It has been submitted by learned counsel for the appellant

that the appellant has been falsely implicated in the case. He has

been sentenced to maximum term of seven years of imprisonment

for offence under Section 376 of IPC. Learned trial court has erred

in convicting and sentencing the appellant. The prosecutrix and

the appellant got engaged and they both had consensual

relationship but thereafter, due to some unfortunate

circumstances, this false case has been levelled against the

appellant. Learned trial court has wrongly inferred from the

statement of appellant recorded under Section 313 of Cr.P.C. that

the appellant committed rape upon the prosecutrix. In this regard,

learned counsel has also referred to para 35, 42, 45 and 50 of the

impugned judgment and has argued that the conclusion drawn

from the statement of appellant under Section 313 of Cr.P.C. is not

legally sustainable. It is further argued that statements of the

appellant under Section 313 of Cr.P.C. cannot be made a basis for

conviction of the appellant. A bare perusal of the statement of

prosecutrix(P.W.1) reveals that relation between the prosecutrix

and the appellant were consensual. No force or fraud was

committed by the appellant. The consent of the prosecutrix was

free and voluntary. Learned trial court has wrongly derived the

conclusion that the prosecutrix was under mental pressure to save

her engagement with the appellant. One person namely-

Amitendra Das threatened the appellant and stated himself to be

husband of the prosecutrix. The appellant was threatened by that

person with dire consequences if the appellant got married to the

prosecutrix. As per settled law to constitute offence under Section

375 of IPC, the promise of marriage must have been a false

(3 of 5)

promise given in bad faith with no intention of being adhere to, at

the time it was given. In this case, no such bad intention of the

appellant has been brought on record which can establish that the

appellant had no intention of marrying the prosecutrix from the

inception of engagement.

Learned counsel has placed reliance upon following

judgments :-

1. Sonu @ Subhash Kumar v. State of Uttar Pradesh & anr.

2021 SCCOnline SC 181

2. Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra & ors.

AIR 2019 SC 327

3. Babu Singh & ors. v. The State of U.P.

1978 CRI.L.J. 651(1)

It is further submitted that the appellant was on bail during

trial. His second bail application under Section 439 of Cr.P.C. was

allowed by this court on 21.01.2016 after considering the

statement of prosecutrix recorded during the trial. He has already

served one year and one month of sentence. Hearing of appeal

may take long time.

Learned Public Prosecutor assisted by learned counsel for the

complainant, has opposed the application for suspension of

sentence and has submitted that the appellant forcibly committed

rape upon the prosecutrix. False promise of marriage was made

with the prosecutrix by the appellant to satisfy his lust. He had no

intention of marrying the prosecutrix from the inception of

engagement The consent of the prosecutrix can not be held to be

voluntary and free. The consent was under duress or mental

(4 of 5)

pressure of the society to save the engagement with the

appellant.

Learned counsel for the respondent/s has also placed

reliance in the case of Vipin Kumar @ Vikki v. State of U.P. & anr.,

Manu/UP/1182/2021(In the High Court of Allahabad, U.P.)

Learned counsel further submits that the learned trial court

has rightly convicted and sentenced the appellant. As per the

version of appellant, he was threatened by some other person

with dire consequences if the appellant got married with the

prosecutrix but even thereafter, he had forceful sexual relationship

with the prosecutrix. The appellant, from the very beginning,

acted with mala fides, therefore, it is prayed that the application

for suspension of sentence may be dismissed.

Heard learned counsel for the parties and scanned the

evidence available on record carefully.

Taking into consideration the submissions of learned counsel

for the appellant, overall facts and circumstances of the case

particularly the statement of prosecutrix and other witnesses, but

without commenting upon detailed merits of the case, this Court

deems just and proper to allow the application for suspension of

sentence.

Accordingly, the application for suspension of sentence is

allowed and it is ordered that the sentence awarded to accused-

appellant Amit Kumar Agarwal S/o Satyanarayan @ Satish

Kumar Agarwal shall remain suspended till disposal of this

criminal appeal and he be released on bail, provided the appellant

furnishes a personal bond of Rs.1,00,000/- and two sureties of

(5 of 5)

Rs.50,000/- each to the satisfaction of the learned trial court for

his appearance in this Court on 10th January, 2022 and as and

when called upon to do so.

(MANOJ KUMAR VYAS),J

Hemant/53

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