Rajasthan High Court

Balram S/O Shri Gopiram vs State Of Rajasthan on 24 February, 2023

Bench: Farjand Ali

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

   S. B. Criminal Misc. Suspension of Sentence Application No.
                            992/2022
                                in
               S.B. Criminal Appeal No. 1551/2022

Harlal Son Of Omprakash, Aged About 28 Years, Resident Of
Sitarampura, Police Station Khatu Shyam Ji District Sikar (At
Present Confined In Central Jail, Ajmer)
                                                                  ----Appellant
                                   Versus
State Of Rajasthan, Through PP
                                                                ----Respondent

Connected With S. B. Criminal Misc. Suspension of Sentence Application No. 150/2023 in S.B. Criminal Appeal (Sb) No. 235/2022 Bholu Ram S/o Shri Jagnath, Resident Of Sitarampura Thana, Khyatushyam Ji District Sikar (At Present Confined In Central Jail, Ajmer Rajasthan)

----Appellant Versus State Of Rajasthan, Through P.p

----Respondent S. B. Criminal Misc. Suspension of Sentence Application No. 154/2023 in S.B. Criminal Appeal (Sb) No. 304/2022 Balram S/o Shri Gopiram, Resident Of Sitarampura, Police Station Khatushyamji District Sikar (Rajasthan) (Presently Confined In Central Jail Ajmer)

----Appellant Versus State Of Rajasthan, Through Public Prosecutor

----Respondent

For Appellant(s) : Ms. Anita w/o appellant Harlal Ms. Sonia Devi w/o Appellant Bholu Ms. Bhagwani, sister of appellant Balram For Respondent(s) : Mr. M.S. Saini, PP

HON'BLE MR. JUSTICE FARJAND ALI Order

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24/02/2023 Lawyers are abstaining from appearing before the Court.

The applications for suspension of sentence have been filed

by the appellants against the judgment impugned dated

20.01.2022 passed by learned Additional District and Sessions

Judge No.2, Kishangarh, Ajmer whereby the accused appellants

have been convicted sentenced to maximum 20 years of rigorous

imprisonment along with fine of Rs.50,000/- for the offence

punishable under Section 376D of IPC and lesser punishment for

the other offence under Section 342/34 of IPC.

The appellants Harlal Son Of Omprakash, Bholu Ram S/o

Shri Jagnath and Balram S/o Shri Gopiram were convicted for

committing offence of rape in the year 2016. They are languishing

in jail and as such the family members, the wives of Harlal and

Bholu Ram and sister of Balram, along with their minor children,

came before this Court for their rescue with teary eyed while

seeking mercy of the court. They submit that the appellants have

not committed any offence but their names have been dragged

into the matter for some reason not known to them but as a

matter of fact, since last seven years, they are living a widowed

life. The appellant Balram is a young boy and is a bachelor and his

married sister beseeched for his release mainly on the ground that

he is behind the bars since last seven years.

Learned Public Prosecutor vehemently opposes the prayer

made on behalf of the accused-appellants.

The present is a case where the victim was abducted by two

persons namely Ishwar and Pradhan, She was taken to a place where

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she was made to take some contaminated substance, as a necessary

consequence of which she felt unconscious. The victim was subjected to

rape by both Ishwar and Pradhan. It is stated that the victim was taken

to another place which was a school premises where, as per allegations

levelled in the FIR, 4-5 persons were called to satisfy their lust. The

other persons who ravished her in the school were not known to her

and she was not even able to identify them by their structure, clothes or

body signs. There is a significant defect in the story of the prosecutrix

as she alleged in the FIR that she was subjected to rape by 4-5 persons

in school premises besides the principal accused Ishwar and Pradhan

but when her statement was recorded under Section 161 Cr.PC., she

first stated that three persons committed rape upon her and later, she

made developments and told that 3-4 persons subjected her to rape.

PW-17-Meera Beniwal, Sub-inspector of Police, who reached to the

victim soon after the incident and recorded her statement, made certain

admissions in cross-examination for which the evidence is required to

be re-appreciated by this Court. Another glaring defect prima facie

appearing in this case is that neither the appellants were named in the

FIR nor in the statements recorded under Sections 161 and 164 Cr.P.C.,

but later on, their names were inducted after their arrest. It has not

been disputed that as soon as they were arrested, their photographs

were taken and published in daily newspaper and in the same clothes,

they were subjected to test identification parade in jail premises. PW-9-

Mohd. Ayub, an independent prosecution witness, candidly admits in

cross-examination that when Ex. P-3, P-4 & P-7 were prepared in the

Police Station on the same day, the victim was present in the police

station premises and the appellants were shown to her and only

thereafter, these persons were arrested. The statement of the victim-

PW-1 has major discrepancies with regard to the other facts as well as

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the incongruency and contradiction in the previous and subsequent

statement further casts a serious doubt on the veracity of her

statements, therefore, in the considered view of this court, entire

evidence is required to be re-appreciated, being the first Appellate

Court.

In the case of State of Gujarat Vs. Bhalchandra not bold

Laxmishankar Dave, reported in 2021 (2) SCC 735, the Hon'ble

Supreme Court has propounded that being the first Appellate Court, the

High Court is under an obligation to re-appreciate the evidence collected

during trial. The appellants are behind the bars since seven years.

There seems no possibility of hearing of appeal in the near future, thus,

keeping the appellants behind the bars for an indefinite period and at

the same time, keeping the appeal pending before this Court, in my

humble view, would not be justifiable.

The accused-appellants are behind the bars and hearing of

the appeal is likely to take further more time, therefore, considering the

overall submissions and looking to the totality of facts and

circumstances of the case but 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 appeal, this court is

of the opinion that it is a fit case for suspending the sentence awarded

to the accused appellants.

Accordingly, the application for suspension of sentence filed under

Section 389 Cr.P.C. is allowed and it is ordered that the sentences

passed by the learned Additional District and Sessions Judge No.2,

Kishangarh, Ajmer, vide judgment dated 20.01.2022 in Sessions Case

No. 39/2019 against the appellant-applicants Harlal Son Of Omprakash,

Bholu Ram S/o Shri Jagnath and Balram S/o Shri Gopiram shall remain

suspended till final disposal of the aforesaid appeal and they shall be

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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/- each to the

satisfaction of the learned trial Judge for their appearance in this court

on 03.04.2023 and whenever ordered to do so till the disposal of the

appeal 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) changes the place of

residence, he/she/they will give in writing

his/her/their changed address to the trial

Court as well as to the counsel in the High

Court.