Akram vs State Of Rajasthan ...
2023 Latest Caselaw 3307 Raj

[2023/RJJD/011216]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 207/2023 Akram S/o Sadik, Aged About 28 Years, Barnel Road, Jayal, Dist. Nagaur. (At Present Lodged In Central Jail, Ajmer).

----Petitioner Versus State of Rajasthan, Through PP

----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 277/2023 Mukesh S/o Kalu Ram @ Ram Prasad, Aged About 26 Years, B/c Raika, R/o Raiko Ki Dhani, Barnel Road, Jayal Police Station, Jayal Dist. Nagaur. (At Present Lodged In Sub Jail, Deedwana).

                                                     ----Petitioner
                              Versus
State Of Rajasthan, Through PP
                                                   ----Respondent


For Petitioner(s)         :     Mr. Sangram Singh
                                Mr. Dinesh Godara
                                Mr. R.S. Choudhary
                                Mr. J.K. Suthar
For Respondent(s)         :     Mr. Modh. Javed Gauri, P.P.



               HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

20/04/2023

1. The instant applications for suspension of sentence have

been moved on behalf of the applicants in the matter of judgment

dated 13.02.2023 passed by learned Additional Sessions Judge,

Didwana, Nagaur in Sessions Case No.08/2017 and whereby each

of the applicants-appellant was convicted and sentenced to suffer

maximum punishment of 20 years rigorous imprisonment along

with fine of Rs.50,000/- and in default of fine to undergo 3 months

simple imprisonment under Section 376-D of IPC and lesser

[2023/RJJD/011216] (2 of 4) [SOSA-207/2023]

punishment for the offences under Sections 342, 366, 323 & 394

of IPC and Section 67 of IT Act.

2. Learned counsel for the applicants-appellant submits that

there is serious discrepancies with regard to the manner in which

the incident occurred and the identification of the miscreants, who

molested the victim. The FIR which came to be lodged on

09.09.2016 reflects that the prosecutrix, a grown up married lady

aged about 38 years, was not knowing the assailants who dragged

her into the car and subjected to rape. Whilst when she was

examined during investigation she stated that the names of the

accused who committed the offence upon her. It is seriously

questioned that how she could get the name after lodging of FIR.

3. As per the FIR exhibit P.1, a man aged about 30-35 years

and complexion of which was black colour having obesity

subjected her to rape. On the other hand, as per the memo of

arrest and the other relevant papers, the accused Akram is aged

about 23 years and the accused Mukesh is aged about 20 years.

The special features of their body or identification are not

mentioned in any of the documents. The most important aspect

of the case is that although the test identification parade was

conducted but when the arrest was made, the accused persons

were not kept veiled and having no mentioning thereof either in

the arrest memo or in the remand paper.

4. In this view of the matter, it is contended that when the

faces of the appellants were openly available for identification to

all, in that situation, the evidence of identification parade does not

have any legal value. There are several other incongruousness

which goes to the root of the case and creating serious doubts and

[2023/RJJD/011216] (3 of 4) [SOSA-207/2023]

thus possibility of false implication cannot be ruled out and as

such, the appellants have strong arguable case in their favour.

Learned counsel for the appellants also submits that hearing of

the appeals would likely to take long time, therefore, the

application for suspension of sentence may be granted.

5. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the learned counsel for the

applicants for suspending the sentence of the applicants-appellant.

He submits that it is a serious case of committing rape, however,

he too is not in a position that how the victim came to know the

names of the miscreants when she was examined under Section

164 of Cr.P.C. specially when she had not mentioned their names

in the FIR.

6. Heard and perused the material available on record.

7. Upon consideration of the grounds raised in the memo of the

appeals, looking to the totality of facts and circumstances of the

case, more particularly the fact that the entire evidence is

required to be verified and assessed again by this Court and also

the fact that the hearing of appeals is likely to take further more

time and while refraining from passing any comments on the

niceties of the matter and the defects of the prosecution as the

same may put an adverse effect on hearing of the appeals, this

court is of the opinion that it is a fit case for suspending the

sentence awarded to the applicants-appellant.

8. Accordingly, the present applications for suspension of

sentence filed under Section 389 Cr.P.C. is allowed and it is

ordered that the sentences passed by learned Additional Sessions

Judge, Didwana, Nagaur vide judgment dated 13.02.2023 in

[2023/RJJD/011216] (4 of 4) [SOSA-207/2023]

Sessions Case No.08/2017 against the appellants-applicant (1)

Akram S/o Sadik and (2) Mukesh S/o Kalu Ram @ Ram

Prasad shall remain suspended till final disposal of the aforesaid

appeals and they shall be released on bail, provided each of them

executes a personal bond in the sum of Rs.50,000/-with two

sureties of Rs.25,000/- to the satisfaction of the learned trial court

for his/her/their appearance in this Court on 24.05.2023 and

whenever ordered to do so till the disposal of the appeals on the

conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant(s) change(s) the place of residence, he/she/they will give in writing his changed address(es) to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(es), they will give in writing their changed address to the trial Court.

9. The learned trial Court shall keep the record of attendance of

the accused-applicant(s) in a separate file. Such file be registered

as Criminal Misc. Case related to original case in which the

accused-applicant(s) was tried and convicted. A copy of this order

shall also be placed in that file for ready reference. Criminal Misc.

file shall not be taken into account for statistical purpose relating

to pendency and disposal of cases in the trial court. In case the

said accused applicant(s) does(do) not appear before the trial

court, the learned trial Judge shall report the matter to the High

Court for cancellation of bail.

(FARJAND ALI),J 125-126/AnilKC/-

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