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Ranjeet Singh vs State Of J&K; on 16 November, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRA No. 25/2018, IA No. 01/2018
Date of order: 16.11.2018
Ranjeet Singh vs State of JK
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : Mr. A. K. Sawhney, Advocate
For respondent (s) : Mr. Raman Sharma, Dy.AG
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
IA No.01/2018

1. Appellant has filed the instant petition for suspension of sentence along
with appeal under Section 410 of the Code of Criminal Procedure
(hereinafter for short, Cr.P.C) against the judgment of conviction/order
of sentence dated 30.05.2018/31.05.2018 respectively passed by the
learned Principal Sessions Judge, Reasi, in File no.165/Sessions,
whereby applicant/appellant has been convicted and sentenced to
undergo rigorous imprisonment for 10 years and a fine of Rs. 25,000/-
for offence under Section 376 RPC.

2. The case of the appellant is that he was arrested on 01.01.2010 and
released on bail on 26.11.2010. He was again taken into custody on
05.04.2012 and released on bail on 07.04.2012. Therafter, again on
07.10.2017 he was taken into custody and since then appellant is in
continuous detention and is presently lodged in Central Jail, Jammu.

3. It has further been stated that case of the prosecution in brief is that on
31.12.2009, Gayatri Devi (mother of the victim) lodged a written
complaint in the Police Post, Ban Ganga, alleging that on the previous

CRA No.25/2018 Page 1 of 6
night at 11 p.m her daughter (name withheld) had gone to fetch water at
Dhaba More and at the time when she was fetching water a boy, namely,
Ranjeet Singh S/o Pritam Singh R/o Purana Daroor came there and
caught hold her daughter and took her towards the bushes and then he
committed forcible rape upon her. Her daughter raised alarm and get
rescued herself from accused. She returned back to house and narrated
the whole incident to her mother-Gayatri Devi. On the basis of this
report, FIR No.178/2009 under Section 376 RPC was registered in Police
Station, Katra and the investigation commenced. The statements of the
witnesses under Section 161 Cr.P.C. were recorded. The clothes of the
prosecutrix were examined by radiologist for the determination of her
age and as per the report of radiologist the prosecutrix is more than 12
years, but less than 14 years.

4. After conclusion of the investigation, on 15.01.2010 challan for the
commission of offence under Section 376 RPC was presented before
JMIC, Katra. Vide order dated 18.02.2010, accused/appellant herein was
charged for the commission of offence under Sections 376/354 RPC. In
support of the charges, prosecution has examined PW-1 prosecutrix
(name withheld), PW-2 Gayatri Devi, PW-3 Kunwa, PW-4 Const. Soba
Ram, PW-5 Rattan Singh Naib Tehsildar, PW-6 Ramesh Chander SPO,
PW-7 Dr.Dinesh Khajuria Radiologist, PW-8 Dr. Anila Kour, PW-9
Sudhir Sadhotra SI/IO and PW-10 Sunil Sharma SI. In defence no
witness has been examined.

5. The Principal Sessions Judge, Reasi after appreciating the materials on
record, convicted the accused/ appellant herein for the offence under
Section 376 RPC by its judgment and order dated 30.05.2018. It has been
stated that the Gayatri Devi, mother of the prosecutrix, deposed before
the Court that she is not in the knowledge of report of police what is
scribed only thumb impression was obtained meaning thereby that she
has not supported the prosecution case and thus was declared as hostile.

CRA No.25/2018 Page 2 of 6

She was the informant, an independent and reliable witness, but she did
not support the prosecution case; That PW Victim who also deposed
against prosecution case and washed away the entire case of the
prosecution, was declared hostile and despite prosecution cross-
examined her, nothing could come out to support prosecution story. That
the other witnesses including Doctor and Police Officials also dented the
prosecution story but benefit of doubt is provided to prosecution, which
is against law and facts; that the impugned Judgment is the result of
complete mis-appreciation of prosecution evidence and non- application
of law and such is liable to be set aside.

State has filed objections and has stated that petitioner has been involved
in serious case and has been convicted by trial court after prosecution
proved its case beyond reasonable doubts..

6. I have heard and gone through law on the subject,

7. Section 426 of the Code of Criminal Procedure, deals with the subject. It
reads as under:

“426 . Suspension of sentence pending the appeal; release of appellant on
bail.

(1) Pending any appeal by a convicted person, the Appellate Court may,
for reasons to be recorded by it in writing, order that the execution of
the sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court may be
exercised also by the High Court in the case of an appeal by a convicted
person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is
convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a
term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a
bailable one, and he is on bail, order that the convicted person be
released on bail, unless there are special reasons for refusing bail, for
such period as will afford sufficient time to present the appeal and
obtain the orders of the Appellate Court under sub- section (1); and the
sentence of imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.

CRA No.25/2018 Page 3 of 6

8. From perusal of Section 426 Cr.P.C., it is evident that save and except,
the matter falling under category of sub-section (3) neither there happens
to be any principle laid down nor criteria has been fixed for consideration
of the prayer of the appellant/convict and further, having a judgment of
conviction erasing the presumption leaning in favour of accused
regarding innocence till contrary recorded. There is thus a distinction in
between pre-conviction as well as post conviction prayer for granting or
refusing the bail.

9. On account of deficiency of the judges in comparison to filing, pendency
of the appeal, backlog has gone up in such a manner that it looks, if not
impossible but a exceptional task to hear and decide the appeal at an
earliest; so every case of such like nature has to considered on facts and
while granting bail court has to evaluate certain facts of each case; while
granting bail or suspending the sentence court should give reasons.

10. In 1999 Cr.LJ 2568 in case titled Bhagwam Rama Shinde Gosai and
Ors. Vs. State of Gujarat on 12 May, 1999, it is held as under:-

“This is a case where appellants have been convicted by the trial court of
the offence under Section 392 read with Section 397 and each of Them
was sentenced to rigorous imprisonment for 10 years. They filed an
appeal before the High Court of Gujarat and moved for suspension of
sentence, but that was not allowed. At a later stage they again moved for
suspension of sentence and that too was dismissed by the impugned
order. Unfortunately, when they made a motion for having their appeal
expedited that also was declined by the High Court on the premise that
the High Court is having older appeals on the board.

When a convicted person is sentenced to fixed period of sentence and
when he files 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 limited duration cannot be suspended every endeavour

CRA No.25/2018 Page 4 of 6
should be made to dispose of the appeal on merits more so when motion
for expeditious hearing 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 of expeditiously the appellate court must
bestow special concern in the matter 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.

In this case as the High Court was not inclined to hear the appeal
expeditiously we are of the view that the sentence passed on appellants
can be suspended on some stringent conditions. We, therefore, suspend
the sentence and direct the appellants to be released on bail on each of
them executing a bond to the satisfaction of Additional Sessions Judge,
Nadiad. We direct the appellants to report to Kapadwang Police Station
on all Mondays and Thursdays between 4.00 P.M. and 6.00 P.M. until
disposal of the appeal pending before the High Court.”

11. In the present case, from the perusal of judgment, it is evident that trial
court has found victim was 12-14 years as per doctor certificate. She has
stated before Court that she does not know accused and seeing him first
time, but thereafter she has categorically stated against the accused and
admitted her statement under section 164-A Cr.P.C. she has stated her
age as 16 years at the time of occurrence. PW Gayatri Devi, mother of
victim, has been declared hostile. She has stated the age of victim as
15/16 years. PW Kunwa has also been declared hostile. Rests of
witnesses are formal witnesses to various circumstances. Every person is
presumed to be innocent, unless his guilt is established by competent
court. First appeal is always considered as continuation of original trial.
This court is already burdened with so many cases especially appeal; it
will take time to hear the appeal.

12. In view of above, there is inconsistency with regard to age of victim;

there is also dispute with regard to identity of accused as victim has said
that she has seen accused first time in court. So I am of view that there is
ground to suspend the sentence at this stage. Hence, sentence passed by
court below is suspended. Accused/appellant shall be enlarged on bail
subject to his furnishing of surety bond and personal bond of Rs.50,000/-

CRA No.25/2018 Page 5 of 6

(rupees fifty thousand) each subject to satisfaction of Registrar Judicial
of this Court. Provided appellant shall not come in contact with
complainant party; shall attend the court on each date; shall not leave
jurisdiction of the court; shall report before concerned police station on
the 1st day of each month till appeal is decided. In case of violation of
any condition, prosecution or complainant may ask for cancellation of
bail.

13. IA No.01/2018 stands disposed of.

(Sanjay Kumar Gupta)
Judge
Jammu
16.11.2018
Bir

CRA No.25/2018 Page 6 of 6

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