Rajasthan High Court

Satyaveer S/O Ram Karan B/C Gurjar vs State Of Rajasthan Through Pp on 14 July, 2021

Bench: Prakash Gupta, Chandra Kumar Songara

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

 D.B. Cr. Misc. Third Application (for Suspension of Sentence) No.
                                  88/2019
                                       In
                D.B. Criminal Appeal No. 362/2017
Satyaveer S/o Ram Karan, R/o Village Baberi, Police Station
Bansur, District Alwar, Raj.
(At Present Confined At District Jail, Alwar)
                                                         ----Accused Appellant
                                   Versus
State Of Rajasthan Through P.P.
                                                                ----Respondent

For Appellant(s) : Mr. S.S. Hasan, Advocate For Respondent(s) : Mr. Rajendra Yadav, AAG-cum-

Government Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA

Order

14/07/2021

This 3rd suspension of sentence application has been

filed by the applicant under Section 389 CrPC.

Learned counsel for the applicant submits that the

accused applicant has been convicted by the trial court vide its

judgment dated 24.1.2017 for the offence under Section 376 (2)

(G) of IPC as also under Section 3(2)(V) of Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,

'the Act of 1989') and sentenced him to undergo life imprisonment

with a fine of Rs. 50,000/-; in default of payment of fine, to

further undergo 1 year simple imprisonment.

(2 of 7) [88 III SOSA 2019 In CRLA-362/2017]

Learned counsel for the applicant submits that the

accused applicant was arrested on 25.7.2011 and by now he has

served about 10 years of sentence. He further submits that the

alleged incident took place on 5.4.2021, whereas the FIR was

lodged on 25.4.2021. Thus, there is a delay of 21 days in lodging

the FIR, for which no satisfactory explanation was given. He

further submits that the prosecutrix is a major and she is a

married woman. He further submits that the prosecutrix in her

statement recorded on 24.4.2021 under Section 161 CrPC in FIR

No. 97/2011 registered under Section 498A IPC categorically

stated that no rape was committed with her. He further submits

that the prosecutrix stated that from 5.4.2011 till the date of

recording her statement under Section 161 CrPC on 24.4.2011,

she was at Bansoor along with her friend, whereas PW-10

Manendra Kumar, who is said to be the nephew of the prosecutrix,

stated that on 6.4.2011, prosecutrix was with her in Jaipur and

she was sent in Bus on 7.4.2021. PW-10 Manendra Kumar further

admitted in his cross-examination that the prosecutrix did not

inform him that she was abducted by the accused persons and

thereafter rape was committed with her. In this way, there are

material contradictions in the statement of prosecution witnesses.

He further submits that PW-6 Dr. Monika Jain, who conducted the

medical examination of the prosecutrix, categorically stated in her

statement that no injury was found on the person of the

prosecutrix. He further submits that PW-16 Dr. Lal Chand Kayal,

who was conducting the investigation in relation to the case

lodged by the prosecutrix under Section 498 A IPC against her in-

laws, stated that during the course of investigation, he received

Ex.-P/6 (injury report of the prosecutrix), where no sign of rape or

(3 of 7) [88 III SOSA 2019 In CRLA-362/2017]

sexual intercourse on the body of the prosecutrix was found. He

further submits that there was a matrimonial dispute of the

prosecutrix with her in-laws and the accused applicant has been

falsely implicated in this matter. He further submits that PW-17 Dr.

Jitendra Pal Singh categorically admitted in his cross-examination

that no semen was detected on the body, clothes, private parts

and vagina of the prosecutrix. He further submits that as per

State FSL report Ex.-P/21, semen could not be detected in Ex. 2

(Salwar), Ex.-3 (Kurta), Ex. -4 (Vulvo Vaginal Slide), Ex.-5 (Vulvo

Vaginal Swab) and Ex.-6 (Pubic Hair). He further submits that the

accused applicant and others filed Cr. Appeal Nos. 595-596 of

2018 before the Hon'ble Supreme Court challenging the order

dated 4.12.2017 passed by this Court dismissing their suspension

of sentence applications and the Hon'ble Supreme Court vide its

order dated 20.4.2018 disposed of the aforesaid appeals

permitting the applicant and others to approach the High Court for

suspension of their sentence, after the trial and proceedings of the

other accused is complete by the trial court in Sessions Case No.

424 of 2017.

He further submits that now, after passing the

aforesaid order by the Hon'ble Apex Court, trial of rest three

accused persons, which was pending at the relevant point of time,

has been completed. He further submits that the accused

applicant is in jail since long and the disposal of appeal is likely to

take long time. Hence, sentence awarded to the accused applicant

by the lower court be suspended.

On the other hand, learned AAG cum Government

appearing for the State has opposed the same. He submits that as

per Ex.-P/6, the prosecutrix sustained injuries on her body. In the

(4 of 7) [88 III SOSA 2019 In CRLA-362/2017]

statement of the prosecutrix recorded under Section 164 CrPC

(Ex.-P/7), she categorically stated that rape was committed with

her. He further submits that statement of the prosecutrix

recorded under Section 161 CrPC in the case registered under

Section 498A IPC, has no evidentiary value and it can be used

only for the purpose of contradiction. He further submits that

cogent reasons have been given by the trial court, on the basis of

which the conviction order has been passed. He further submits

that first suspension of sentence application filed by the accused

applicant Satyaveer was dismissed on merits by the Coordinate

Bench of this Court vide order dated 4.12.2017 passed in D. Cr.

Misc. (Suspension of Sentence) Application No. 988/2017 and

thereafter there is no change in the circumstances in the present

matter, except that the sentence period of the accused applicant

has been increased. He further submits that FIR No. 97/2011

registered for the offence under Section 498A IPC fortifies that

when the prosecutrix was given beating by her in-laws, she left

her matrimonial house and while she was going to her village, on

the way, accused persons met her and took her away on the

motor cycle and committed rape. Hence, statement of the

prosecutrix recorded under Section 161 CrPC in the case

registered under Section 498A IPC would not give any benefit to

the accused applicant, hence his sentence should not be

suspended.

Heard. Considered.

The Coordinate Bench of this Court while dismissing the

first suspension of sentence application of the accused applicant

vide its order dated 4.12.2017 in D.B. Cr. Misc. (Suspension of

Sentence) Application No. 988/2017 in D.B. Cr. Appeal No.

(5 of 7) [88 III SOSA 2019 In CRLA-362/2017]

362/2017 observed that it would be open for the accused

applicant(s) to apply again for suspension of sentence if their

appeals are not decided before they complete ten years in

incarceration.

The aforesaid order dated 4.12.2017 passed by the

Coordinate Bench of this Court in D.B. Cr. Misc. (Suspension of

Sentence) Application No. 988/2017 in D.B. Cr. Appeal No.

362/2017 was challenge before the Hon'ble Apex Court and the

Hon'ble Apex Court vide its order dated 20.4.2018 observed that

the aforesaid observation was virtually prohibiting the appellants

not to approach the Court for suspension of their sentence for ten

years, and permitted the appellants therein to approach the High

Court for suspension of their sentence, after the trial and

proceedings of the other accused is complete by the trial court in

Criminal Case No. 424 of 2017.

The order dated 20.4.20218 passed by the Hon'ble

Apex Court is reproduced as under:-

"We have heard learned counsel for the parties.

Leave granted.

These appeals by special leave are directed against the final order passed by the High Court of Judicature for Rajasthan, Bench at Jaipur dated 4.12.2017 in D.B. Cr. Misc. (S.O.S.) Appl. No. 988 of 2017 in D.B. Cr. Appeal No. 362 of 2017 and D.B. Cr. Misc. (S.O.S.) Appl. No. 785 of 2017 in D.B. Cr. Appeal No. 433 of 2017 whereby the High Court dismissed the applications for suspension of sentence of the appellants herein.

The High Court, by the impugned order, refused the relief sought by the appellants i.e. suspending the sentence of the accused - appellants, pending appeal, on the ground that the cases of some

(6 of 7) [88 III SOSA 2019 In CRLA-362/2017]

of the accused have been separated and in some of the cases, trial is going on.

The High Court also observed as under:

"It would be however, open for them to apply again for suspension of sentence if their appeals are not decided before they complete ten years in incarceration."

The aforesaid observation is virtually

prohibiting the appellants not to approach the Court

for suspension of their sentence for ten years.

We, therefore, set aside the aforesaid

portion of the impugned order and permit the

appellants to approach the High Court for suspension

of their sentence, after the trial and proceedings of

the other accused is complete by the trial court in

Criminal Case No. 424 of 2017.