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Sharad Chandra @ Sharat Chandra vs State on 21 December, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Suspension Of Sentence(Appeal) No.1093/2018

In

S.B. Criminal Appeal No. 665/2018

Sharad Chandra @ Sharat Chandra S/o Shri Jayant Rao, by caste
Brahmin, resident of 2-2-1130/22, Flat 102, Kusum Mension,
New Nalakuntha, Police Station Amarpeth, Hyderabad

[Presently lodged in Central Jail, Jodhpur]

—-Appellant
Versus
State Of Rajasthan

—-Respondent

For Appellant(s) : Mr Vineet Jain Mr Nishant Bora
For Respondent(s) : Mr Arjun Singh Rathore – PP
For Complainant : Mr P.C.Solanki

HON’BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

21/12/2018

This application under Section 389 Cr.P.C. has been

preferred on behalf of the applicant-appellant seeking suspension

of sentence awarded to him by Special Judge, POCSO Act Cases

Jodhpur (hereinafter to be referred as ‘the trial court’) vide its

judgment dated 25.04.2018 passed in Sessions Case No.116/2016

(152/2013), whereby the trial court has convicted the applicant-

appellant for the offences punishable under Sections 370(4) read
(2 of 12) [CRLSOS-1093/2018]

with Section 120-B and 376D IPC, however, sentenced him as

under:

Under Section 370(4)/120-B IPC : 10 years’ rigorous

imprisonment and to pay a fine of Rs.50,000/-, in default of

payment of fine, further to undergo one year’s rigorous

imprisonment

Under Section 376D IPC : 20 years’ rigorous imprisonment and

to pay a fine of Rs.50,000/-, in default of payment of fine, further

to undergo 2 years’ rigorous imprisonment.

As per the prosecution story, the prosecutrix, a 12 th

Standard student, who was studying and residing in Asharam

Gurukul, Chhindwara, Madhya Pradesh fell ill in first week of

August, 2013. The co-accused Sanchita alias Shilpi, who was

working as Warden of the hostel, where the prosecutrix was

residing, came to know about the illness of the prosecutrix and

thereafter told her that she is under the influence of evil spirits.

On 07.08.2013, co-accused Sanchita alias Shilpi informed the

family members of the prosecutrix that she is not feeling well, so

they should take her to Gurukul at Chhindwara, upon which the

parents of the prosecutrix reached Chhindwara on 08.08.2013 and

thereafter on 09.08.2013, visited the Girls Hostel, Gurukul,

Chhindwara, where the prosecutrix was residing and met the co-

accused Shilpi and the applicant-appellant, where they told her

parents that the prosecutrix is under the influence of evil spirits

and they also informed about her condition to Asharam Bapu, so

they should meet him wherever he is. On 09.08.2013 itself, the

prosecutrix left the hostel for Shahjahanpur, U.P. with her

parents, where they contacted another co-accused – Shiva, who

informed them that Asharam would be in Delhi on 12.08.2013,
(3 of 12) [CRLSOS-1093/2018]

then the prosecutrix along with her parents reached Delhi on

13.08.2013, then they came to know that Asharam is in Jodhpur

and when they again called Shiva, he asked them to come to

Jodhpur. Thereafter, the prosecutrix along with her family

members reached Jodhpur at Manai village, where Asharam was

staying in a farm house. The prosecutrix along with her parents

stayed there and met with Asharam. On 15.08.2013, the

prosecutrix was sexually assaulted by Asharam in a Kutia of farm

house. Thereafter, the prosecutrix and the family members left

Jodhpur and reached Shahjapur, where the prosecutrix narrated

entire incident of sexual assault by Asharam to her family

members on 19.08.2013. Then the prosecutrix and her family

members went to Delhi, where a zero number FIR was lodged at

Police Station, Kamla Market, New Delhi and statements of the

prosecutrix were recorded under Section 164 CrpC and thereafter,

FIR No.122/2013 was registered at Police Station, Mahila West,

Jodhpur on 21.08.2013.

After investigation, the police filed charge-sheet against

the applicant-appellant for the offences punishable under Sections

342, 354-A, 370(4), 376(2)(f), 376D, 506, 509/34, 109/120-B

IPC and Sections 23 and 26 of Juvenile Justice (Care and

Protection of Children) Act, 2015 (hereinafter to be referred as

‘the Juvenile Justice Act’) and Sections 5(f)/6, 5(g)/6, 7/8 read

with Section 17 of Protection of Children from Sexual Offences

Act, 2012 (hereinafter to be referred as ‘the POCSO Act’).

The trial court framed charges against the applicant-

appellant for the offences punishable under Sections 342/34,

354A/34, 370(4), 376(2)(f) read with Section 120-B/109, 376D,

506/34, 509/34 read with Section 109/120 IPC and Section 23 of
(4 of 12) [CRLSOS-1093/2018]

the Juvenile Justice Act and Section 5(f)/6 read with Section 17,

5(g)/6,7/8 of the POCSO Act.

After recording of the prosecution evidence as well as

the defence evidence, the trial court has convicted and sentenced

the applicant-appellant as aforesaid.

Learned counsel for the applicant-appellant have

submitted that the trial court has grossly erred in convicting and

sentencing the applicant-appellant for the offences punishable

under Sections 376D IPC and Sections 5(g)/6 and 17 of POCSO

Act.

It is argued that the applicant-appellant was appointed

as Director of Asharam Gurukul Hostel, Chhindwara, Madhya

Pradesh in January 2013 only vide Ex.P/64 and prior to that, he

was not connected with the activities of Gurukul in any manner. It

is further argued that no direct evidence is available on record to

suggest that the applicant-appellant sent the prosecutrix to the

Ashram at Jodhpur where accused – Asharam was staying or he

was aware that if the prosecutrix would go to Asharam’s place,

she would be sexually assaulted by him.

Learned counsel for the applicant-appellant have

further argued that there is no direct evidence available on record

to suggest that the applicant-appellant hatched a criminal

conspiracy with accused – Asharam and sent the prosecutrix to the

place, where Asharam was staying, so that he could sexually

assault her. Learned counsel for the applicant-appellant have

submitted that the trial court in the impugned judgment has also

concluded that there is no direct evidence available on record to

suggest that the applicant-appellant had directed the prosecutrix

and her parents to go to the place where accused – Asharam was
(5 of 12) [CRLSOS-1093/2018]

staying while knowing that the prosecutrix would be sexually

assaulted there.

Learned counsel for the applicant-appellant have

submitted that the challenge of the applicant-appellant to his

conviction under Section 376 IPC and Sections 5(g)/6 read with

Section 17 POCSO Act and his sentence under Section 376D IPC is

based on strong grounds.

Learned counsel for the applicant-appellant have

further submitted that the trial court has inferred that when the

prosecutrix and her parents met to Asharam at Jodhpur and

narrated about the illness of the prosecutrix, he had identified the

prosecutrix by saying “BHOOT WALI LADKI” from Chhindwara and

this fact is sufficient to prove that the applicant-appellant and

Asharam were in league to commit the offence. It is argued that

the prosecutrix and her parents made a significant improvement in

their statements recorded before the court and deliberately stated

that accused – Asharam had identified the prosecutrix as “BHOOT

WALI LADKI” from Chhindwara, though such fact was not revealed

either by the prosecutrix or her parents during the course of

investigation.

Learned counsel for the applicant-appellant have

further argued that the trial court in Para 458 of the impugned

judgment came to the conclusion that no direct evidence of the

above mentioned facts is available on record, however, without

there being any evidence available on record, on the basis of

surmises and conjectures, the trial court held the applicant-

appellant guilty of hatching a criminal conspiracy with accused –

Asharam.

(6 of 12) [CRLSOS-1093/2018]

Learned counsel for the applicant-appellant have invited

attention of the Court towards the statements of the prosecutrix-

PW.5 as well as of her father Karamveer Singh-PW.21 and argued

that from the evidence of the said witnesses, only it can be

gathered that the applicant-appellant had suggested PW.12 to

contact accused-Asharam and nothing else.

Learned counsel for the applicant-appellant have

argued that the applicant-appellant was appointed as Director of

the Gurukul Ashram Hostel, Chhindwara in January 2013 only,

whereas the said hostel was running prior to the appointment of

the applicant-appellant and, therefore, it cannot be said that the

applicant-appellant is involved in recruiting, transporting,

harboring, transferring or receiving any girl of the hostel for the

purpose of her exploitation and as such the trial court has grossly

erred in convicting and sentencing the applicant-appellant for the

offences punishable under Section 370(4)/120 IPC.

It is also submitted that the applicant-appellant was

only a Director of the hostel and was not in direct contact with

inmates of the hostel, whereas co-accused Sanchita @ Shilpi being

the Warden of the hostel was in direct contact with the inmates of

the hostel. It is further submitted that as per the prosecutrix and

her parents, it was co-accused – Sanchita @ Shilpi, who contacted

the parents of the prosecutrix and informed them about her illness

and on her asking, the parents of the prosecutrix reached

Chhindwara on 09.08.2013. It is argued by the learned counsel

for the applicant-appellant that there is no evidence available on

record to suggest that prior to 09.08.2013, the applicant-appellant

ever called the parents of the prosecutrix or was in contact with

them in any manner. Learned counsel for the applicant-appellant
(7 of 12) [CRLSOS-1093/2018]

have also submitted that from the evidence of the parents of the

prosecutrix, it is clear that the father of the prosecutrix met the

applicant-appellant only on 09.08.2013 at Chhindwara and

thereafter, they were not at all in contact of the applicant-

appellant in any manner.

It is further submitted that as per the prosecution story,

the applicant-appellant was in contact with accused – Asharam on

a mobile phone, which was in possession of co-accused Prakash,

however, the trial court has already acquitted the accused –

Prakash while concluding that the prosecution has failed to prove

that the mobile phone was in possession of Prakash and through

the said mobile phone, accused-Asharam was in contact with other

accused-persons viz. applicant-appellant and Sanchita @ Shilpi.

Learned counsel have, therefore, argued that challenge

of the conviction and sentence of the applicant-appellant under

Section 370(4)/120 IPC is also on strong grounds.

Learned counsel have also submitted that the applicant-

appellant was granted bail during the course of trial by this Court

and there is no allegation to the effect that he misused the

condition of the bail in any manner. It is, therefore, prayed that

taking into consideration the facts and circumstances of the case,

the sentence awarded to the applicant-appellant by the trial court

vide impugned judgment may be suspended.

Per contra, Mr Arjun Singh – learned Public Prosecutor

and counsel appearing for the complainant have vehemently

opposed the application for suspension of sentence and argued

that from the statements of PW.5 – prosecutrix, PW.12 Sunita

Singh and PW.21 Karmveer Singh, parents of the prosecutrix, it is

clear that the applicant – appellant along with co-accused-

(8 of 12) [CRLSOS-1093/2018]

Sanchita @ Shilpi convinced the prosecutrix and her parents by

falsely creating an impression that the prosecutrix is under the

influence of evil spirits and then induced them to approach

accused-Asharam, where the prosecutrix, a minor girl, was

sexually assaulted by him.

It is also argued that by producing cogent and reliable

evidence, the prosecution has successfully proved that at the time

of incident, the prosecutrix was minor and she was subjected to

sexual assault by accused-Asharam with the aid of applicant-

appellant and co-accused Sanchita @ Shilpi.

Learned counsel appearing for the complainant has also

argued that for the purpose of proving guilt of a co-accused for

the offence punishable under Section 376D IPC, his/her presence

at the place of offence is not necessary at all. It is submitted that

sufficient evidence is available on record to suggest that the

applicant-appellant had sent the prosecutrix and her parents to

Asharam having full knowledge that she might be subjected to

sexual assault by him. It is contended that grant of bail by the

High Court, during the course of trial, cannot be a ground for

suspending the sentence awarded to a convict.

On behalf of the State as well as on behalf of the

complainant, it is prayed that the application preferred on behalf

of the applicant-appellant for suspension of his sentence is liable

to be dismissed.

Heard learned counsel for the parties and carefully

scrutinized the record of the case.

The trial court convicted the applicant-appellant for the

offences punishable under Section 376D IPC, Section 5(g)/6 and

17 of the POCSO Act and sentenced him for twenty years’
(9 of 12) [CRLSOS-1093/2018]

rigorous imprisonment for the offence punishable under Section

376D IPC. He has also been convicted for the offence punishable

under Section 370(4) read with Section 120-B IPC and sentenced

for ten years’ rigorous imprisonment.

It is not in dispute that at the time of incident of sexual

assault upon the prosecutrix by accused-Asharam at Jodhpur, the

applicant-appellant was not present at Jodhpur.

On behalf of the applicant-appellant, it is claimed that

he was appointed as Director of the Asharam Gurukul Hostel,

Chhindwara in January, 2013 vide Ex.P/64 and prior to that he

was not related to the activities of Gurukul Hostel, Chhindwara in

any manner and the prosecution has not placed any evidence to

prove otherwise. The prosecution has also not produced any

evidence of this effect that prior to 09.08.2013, the applicant-

appellant was, in any manner, in contact of the prosecutrix or her

parents. It is also not the case of the prosecution that after

09.08.2013, when the prosecutrix and her parents left the

Asharam Gurukul Hostel, Chhindwara, they were in contact of the

applicant-appellant by whatsoever means.

As per the prosecution, the applicant-appellant was in

regular contact with accused-Asha Ram through mobile phone

possessed by accused Prakash, however, the trial court acquitted

the accused-Prakash while concluding that the prosecution has

failed to establish their link with the commission of crime on the

basis of mobile phone possessed by him. The trial court in Para

412 of the impugned judgment has given finding that the

prosecution has succeeded in proving that Mobile Phone

Nos.9373976316 and 9310229635 are of applicant-appellant but

at the same time, the trial court in its judgment has specifically
(10 of 12) [CRLSOS-1093/2018]

held that the prosecution has failed to prove the link between the

above referred mobile numbers with Mobile No.9321933400,

which was allegedly in possession of Prakash and used by

accused-Asharam for making contact with other persons.

The trial court in Para 458 of the impugned judgment

has also observed that there is no direct evidence available on

record, which suggests that the applicant-appellant sent the

prosecutrix to Asharam, so that he could sexually assault her but

has held that on the basis of ocular and circumstantial evidence, it

can be inferred that the applicant-appellant had sent the

prosecutrix to Asharam, so that he could assault her sexually.

However, the ocular and circumstantial evidence, on which the

trial court has placed reliance require consideration in detail.

Taking into consideration the above facts and

circumstances of the case, this Court feels that the challenge of

the applicant-appellant to his conviction for the offence punishable

under Section 376D IPC, Section 5(g) and 17 of the POCSO Act

and under Section 370(4)/120 IPC is based on strong grounds.

Having regard to the facts and circumstances of the

case and the fact that the applicant-appellant was granted bail

during trial and it is not reported that he misused the conditions of

the bail, I consider it just and proper to suspend the substantive

sentence awarded to him.

Accordingly, this application for suspension of sentence

filed under Sec.389 Cr.P.C. is allowed and it is ordered that the

substantive sentence passed by the trial court vide judgment

dated 25.04.2018 passed in Sessions Case No.116/2016

(152/2013) against applicant-appellant Sharad Chandra @ Sharat
(11 of 12) [CRLSOS-1093/2018]

Chandra S/o Jayant Rao shall remain suspended till final disposal

of S.B.Cr. Appeal No.665/2018, provided he executes a personal

bond in the sum of Rs.2,00,000/- (Rupees two lac) with two

sureties of Rs.1,00,000/- (Rupees one lac) each to the satisfaction

of the learned trial Judge for his appearance in this Court on

21.01.2019 and whenever ordered to do so, till the disposal of

the aforesaid 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-appellant 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.

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

4. That the amount of fine awarded by the trial court
shall be deposited by the applicant-appellant in
the trial court by 21.01.2019.

The trial Court shall keep the record of attendance of

the applicant-appellant in a separate file. Such file be registered

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

applicant-appellant 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

applicant-appellant does not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

(12 of 12) [CRLSOS-1093/2018]

The trial court is directed to disburse the fine amount,

so deposited by the applicant-appellant, to the complainant.

(VIJAY BISHNOI),J

masif/-PS

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