Rajasthan High Court - Jodhpur

Chena Ram vs State Of Rajasthan ... on 8 May, 2023

Bench: Farjand Ali

[2023/RJJD/014098]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR rd S.B. Criminal Misc 3 Suspension Of Sentence Application (Appeal) No. 387/2023

Chena Ram S/o Geba Ram, Aged About 32 Years, B/c Meghwal, R/o Kankhi, P.s. Siwana, Dist. Barmer (Raj.). (At Present Lodged In Central Jail Jodhpur).

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


For Petitioner(s)           :     Mr. Ranjeet Joshi
                                  Ms. Lata Sharda
For Respondent(s)           :     Mr.A.R. Choudhary, PP



               HON'BLE MR. JUSTICE FARJAND ALI

                                        Order

08/05/2023

1.    The instant 3rd      application for suspension of sentence has

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

dated 09.06.2016 passed by the learned Sessions Judge, Balotra,

District Barmer in Sessions Case No.55/2013 (142/2014) whereby

he was convicted and sentenced to suffer maximum imprisonment

of 20 years under Section 376 (d) of the IPC and lesser

punishment for the other offences under Sections 447 and 306 of

the IPC. Now a long time has elapsed and appeal couldnot be

heard in a reasonable period, thus, the applicant has preferred the

instant 3rd bail application.

2. Shri Ranjeet Joshi along with Ms. Lata Sharda learned

counsel appearing for the appellant-applicant Chena Ram

vehemently contended that no reliance can be placed on the

alleged dying declaration (Ex.P/19) because of incongruity

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appearing between the dying declaration and her statement (Ex.P/

19 & Ex.P/24) if both are examined together with the other

circumstances of the case. Learned counsel contend that it is not

a universal truth that a person who is near to death, will never tell

a lie. Otherwise also, the incident took place on 11.05.2013 but

the matter was reported to the police on 14.05.2013, the alleged

dying declaration (Ex.P/19) was recorded on 26.05.2013 and she

died on 15.06.2013. The possibility of her being tutored, prompted

or put under duress to falsely implicate the appellant-applicant

cannot be ruled out. No endeavor was made to examine the

deceased between 13.05.2013 to 26.05.2013. They further

submit that upon careful examination of First Information Report

(Ex.P/7), it is emanating that the father of the victim prompted to

lodge the report after the girl immolated herself on 13.05.2013.

The FIR (Ex.P/7) further reveals that the alleged act of teasing or

molestation was committed on 11.05.2013 but no report to this

effect was lodged on the very same day. The report does not

disclose that any rape was committed upon the victim. It is

manifesting from the record and her statement that she was

subjected to rape well before the date of incident of burning which

may be prior to six months but never ever any complaint was

made in this regard. The learned trial Court convicted the

appellant for the offence under Section 376 (d) of the IPC and

sentenced him to suffer 20 years rigorous imprisonment without

there being an iota of evidence to show or suggest that she was

subjected to rape or continuously raped by the appellant except

the so called dying declaration (Ex.P/19) and her statement (Ex.P/

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24), the sanctity of which is under grave cloud of doubt since both

are having contradictions to each other on several material

aspects. In Dying Declaration (Ex.P/19) recorded on 26.05.2013

by the learned Judicial Magistrate, the deceased allegedly stated

that two days prior to the incident of burn, when she was in

jungle, the accused appellant Chena Ram came there along with

co-accused Jaita Ram and Rata Ram, all of them molested and

seduced her. On the contrary, in her statement (Ex.P/24) under

Section 161 Cr.P.C. which was recorded on 13.05.2013, she

narrated the story in a different manner. However, she had alleged

that three persons subjected her to rape. A significant

contradiction can be noticed between dying declaration (Ex.P/19)

and statement of deceased (Ex.P/24) recorded under Section 161

Cr.P.C. In dying declaration (Ex.P/19,) she allegedly told that

accused appellant Chena Ram, co-accused Jaita Ram and Rata

Ram committed offence of rape upon her. Whilst, in her

statement (Ex.P/24), she alleged that accused appellant Chena

Ram, Rata Ram and Angiya S/o Bula committed rape upon her so

there is a change in name of one person between both the

statements. The nature of causing acts by three persons are

identical and the fact that sentences of co-accused of this case i.e.

Jaita Ram and Rata Ram have already been suspended by the

Coordinate Bench of this Court vide order dated 27.07.2017

passed in S.B. Criminal Suspension of Sentence Applications

No.485/2017 & 775/2016, therefore, there would be no

justification to keep the appellant behind the bars for further

indefinite period. To dispute the genuineness and truthfulness of

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the allegations, learned counsel drew the attention of this Court

towards the admissions made by Shri Rameshwar Lal, the

Additional Superintendent of Police, Crime, Jodhpur, who

conducted investigation and was examined during trial as P.W. 23

wherein he candidly admitted that deceased used to make call and

text messages to the appellant Chena Ram and the same used to

be reciprocated between them. The details of which are given in

the statement as well as in the call detail reports Ex.D/9 and

Ex.D/10. They further submit that the genuineness of the

occurrence has deliberately been suppressed by the prosecution

and even despite collection of call details, the same were withheld

by the prosecution however, they were tendered into evidence in

defence. Lastly, it is submitted that appellant is behind the bar

since 16.05.2013 and in view of the cheques and balances

available on record, the judgment of conviction passed by the

learned trial Judge is not sustainable in eyes of law as there are

more than ample grounds on the basis of which the appellant may

get acquittal in appeal but there appears no hope of hearing the

appeal in near future thus, sentence awarded to him may be

suspended during the pendency of the appeal.

3. Learned Public Prosecutor has vehemently and fervently

opposed the submissions made by the learned counsel for the

petitioner but do not dispute the fact that the appellant-applicant

is languishing in jail for around 10 years.

4. Heard learned counsel for the appellant-applicant and

learned Public Prosecutor for the State and perused the material

available on record.

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5. In a recent judgment passed by Hon'ble the Supreme Court

in the matter of Om Prakash Sahni Vs. Jai Shankar

Choudhary & Anr. (Criminal Appeal Nos.1331-1332 of

2023) decided on 02nd May, 2023, Hon'ble the Apex Court has

reiterated the law with regard to the suspension of sentence. The

relevant para No.24 to 33 are reproduced as under:-

24. From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC.

25. In Rajesh Ranjan Yadav alias Pappu Yadav v. CBI, reported in (2007) 1 SCC 70, it has been held under paras 8, 9 and 10 respectively, which are as follows:

"8. Learned counsel for the appellant then relied on the decision of this Court in Kashmira Singh v. State of Punjab [(1977) 4 SCC 291 : 1977 SCC (Cri) 559] . In para 2 of the said decision it was observed as under : (SCC pp. 292-93).

"It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not

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to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: 'We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."

9. Learned counsel for the appellant then relied on the decision of this Court in Bhagirathsinh v.

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State of Gujarat [(1984) 1 SCC 284 : 1984 SCC (Cri) 63] , Shaheen Welfare Assn. v. Union of India [(1996) 2 SCC 616 : 1996 SCC (Cri) 366] , Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 : 1994 SCC (Cri) 1172], etc.

10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted." (Emphasis supplied)

26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Another, reported in (2012) 9 SCC 446, has observed in para 30, as follows:

30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the

[2023/RJJD/014098] (8 of 16) [SOSA-387/2023]

scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused." (Emphasis supplied)

27. In Bhagwan Rama Shinde Gosai and Others v. State of Gujarat, reported in (1999) 4 SCC 421, wherein the appellants were convicted by the Trial Court against which, the appeal was pending before the High Court, the High Court successively rejected the prayer for grant of bail till the pendency of appeal after suspending the sentence. Thus, it has been held as follows:

"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal 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 a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of 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

[2023/RJJD/014098] (9 of 16) [SOSA-387/2023]

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. Of course, appellate courts can impose similar conditions when bail is granted." (Emphasis supplied)

28. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), reported in (2008) 5 SCC 230 (popularly known as the Jessica Lal murder case), this Court had the occasion to consider the rival submissions as well as various judicial pronouncements referred to by both the sides over the prayer for bail. Thus, it has been held as follows:

"19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

xxx xxx xxx

30. ....In the above cases, it has been observed that once a person has been convicted, normally, an appellate court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar [(2002) 9 SCC 364 : 2003 SCC (Cri)

[2023/RJJD/014098] (10 of 16) [SOSA-387/2023]

1195 : JT 2002 Supp (1) SC 60] that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.

31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 : JT (2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6) "6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine." (emphasis supplied)

[2023/RJJD/014098] (11 of 16) [SOSA-387/2023]

32. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail." (Emphasis supplied)

29. In the case of Atul Tripathi v. State of Uttar Pradesh and Others, reported in (2014) 9 SCC 177, whereunder apart from identifying the differences of consideration of prayer for grant of bail relating to pre- conviction stage as well as post-conviction stage, it has been held in para 14 which is as follows:

"14. Service of a copy of the appeal and application for bail on the Public Prosecutor by the appellant will not satisfy the requirement of the first proviso to Section 389(1) CrPC. The appellate court may even without hearing the Public Prosecutor, decline to grant bail. However, in case the appellate court is inclined to consider the release of the convict on bail, the Public Prosecutor shall be granted an opportunity to show cause in writing as to why the appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. ....."

30. In Kishori Lal v. Rupa and Others, reported in (2004) 7 SCC 638, this Court has indicated the

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factors that require to be considered by the courts while granting benefit under Section 389 of the CrPC in cases involving serious offences like murder etc. Thus, it is useful to refer to the observations made therein, which are as follows:

4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.

6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much

[2023/RJJD/014098] (13 of 16) [SOSA-387/2023]

significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view."

31. In Vijay Kumar v. Narendra and Others reported in (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and Another reported in (2002) 9 SCC 366, it was held by this Court that in cases involving conviction under Section 302 of the IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar (supra), it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 of the IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

32. The aforesaid view is reiterated by this Court in the case of Vasant Tukaram Pawar v. State of Maharashtra reported in (2005) 5 SCC 281 and Gomti v. Thakurdas and Others reported in (2007) 11 SCC 160.

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33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.

6. After careful scanning of the judgment impugned and the

evidence brought on record and upon consideration of the

submissions made on behalf of the appellant prima facie this Court

is satisfied that the conviction may not sustain upon final hearing

of the appeal. This Court is of the considered view that whenever

during hearing of the application for suspension of sentence, it

appears to the Court that the convict has a strong arguable case

in his favour and there appears fair chances of acquittal at the end

[2023/RJJD/014098] (15 of 16) [SOSA-387/2023]

of the appeal, the appellate Court should tend to suspend the

sentence if the appeal is not likely to be heard in near future.

Admittedly, the appellant is behind the bar for around last ten

years.

7. Thus, upon consideration of the overall fact and after going

through the dying declaration (Ex.P/19) in comparison with

statement (Ex.P/24) as well as the admission made by P.W. 23

Shri Rameshwar Lal, Addl. Superintendent of Police, Jodhpur and

coupled with the fact that the accused Rata Ram and Jaita Ram

have been granted benefit of bail till pendency of the appeal by

the Coordinate Bench of this Court and looking to the fact that the

allegations attributed against the appellant Chena Ram are more

or less, identical in nature to the co-accused Rata Ram and Jaita

Ram and feeling persuaded by the grounds raised by the learned

counsel, which if considered in appeal in his favour may lead to his

acquittal, I deem it appropriate to suspend the sentence of the

accused-appellant awarded by the learned trial court till final

disposal of the appeal.

8. Accordingly, the 3rd application for suspension of

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

ordered that the sentence passed by learned Sessions Judge,

Balotra, District Barmer who passed the impugned order dated

09.06.2016 in Sessions Case No. 55/2013 (142/2014) against the

appellant-applicant-Chena Ram S/o Geba Ram Meghwal shall

remain suspended till final disposal of the aforesaid appeal and he

shall be released on bail provided he executes a personal bond in

the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to

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the satisfaction of the learned trial Judge for his appearance in this

court on 15.05.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

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

2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.