Research › Search › Judgment

Rajasthan High Court · body

2020 DIGILAW 658 (RAJ)

Kishan v. State

2020-09-17

KUMARI PRABHA SHARMA, SANDEEP MEHTA

body2020
JUDGMENT 1. Today the matter comes up for orders of an interlocutory application filed by Mr. Deepak Menaria to prepone the date fixed in the matter i.e. 06.10.2020. 2. The application is accepted and with the consent of the learned Public Prosecutor, the matter is heard today itself. 3. The instant application for Suspension of Sentence has been preferred on behalf of appellant-applicant Kishan son of Veerji Meena, who has been convicted and sentenced for the offences under Sections 450, 323, 376 (2)(g) IPC and Section 4/25 of the Arms Act vide the Judgment dated 28.08.2019 passed by the learned Additional Sessions Judge, Salumbar, District Udaipur in Sessions Case No.15/2017. 4. Learned Public Prosecutor has chosen not to file reply to the application for suspension of sentence and proposed to argue the matter orally. 5. Heard learned counsel for the parties and perused the material available on record. 6. The application for Suspension of Sentence filed on behalf of the co-accused Ashok (DB Criminal Miscallaneous Suspension of Sentence Application No.55/2020) has been accepted by this Court vide order dated 10.01.2020 in the following terms: "The instant application for suspension of sentences under Section 389 CrPC has been preferred by the appellant Ashok, who has been convicted and sentenced for the offences under Sections 450, 323 and 376 (2)(g) of the IPC vide judgment dated 28.08.2019 passed by the learned Additional Sessions Judge, Salumber, District Udaipur in Sessions Case No.15/2017 (C.I.S. No.15/2017). Learned counsel Mr. Pradeep Shah, representing the appellant-applicant, urges that there is no evidence worth the name on the record of the case so as to connect the appellant with the crime. He submits that the FIR of the so called incident dated 24.02.2017, in which, the prosecutrix Mst. 'P' was allegedly sexually assaulted by the appellant, was lodged at late as on 27.02.2017. No justification has been offered by the prosecution for this delay in lodging of the report. The prosecutrix was not examined at the trial because she expired after lodging of the report. As per Mr. 'P' was allegedly sexually assaulted by the appellant, was lodged at late as on 27.02.2017. No justification has been offered by the prosecution for this delay in lodging of the report. The prosecutrix was not examined at the trial because she expired after lodging of the report. As per Mr. Shah, the approach of the learned trial court in treating the Parcha Bayan of the victim and her statement recorded under Section 164 CrPC as dying declarations is absolutely perverse and thus, not only is the appellant entitled to bail during the pendency of appeal, but in addition thereto, suitable observations should be made against this sheerly perverse finding recorded by the trial court in the impugned judgment. Learned Public Prosecutor has vehemently and fervently opposed the submissions advanced by the appellant's counsel. Nonetheless, he too is not in a position to dispute the fact that the prosecutrix Mst. 'P' was not examined at the trial because she expired after lodging of the report. Manifestly, the previous statement of a person, who is no longer available to give statement, can only be read in evidence in case such statement relates to circumstances leading to his/her death. In the present case, the previous statements of the victim, i.e. Ex.D/1 and Ex.P/13, which the trial court treated to be dying declarations admissible under Section 32 of the Evidence Act, were in relation to an alleged incident of sexual assault and had nothing to do with the cause of her death. Thus, there was no legal basis for the trial court to have relied upon such statements while convicting the appellant for the offence under Section 376 IPC. The findings recorded by the trial court in this regard are absolutely perverse and against all canons of criminal jurisprudence. Thus, the instant application for suspension of sentence filed under Section 389 Cr.P.C. deserves to be and is hereby allowed." 7. The case of the appellant-applicant stands on the same footing as that of co-accused Ashok. Thus, the application for Suspension of Sentence deserves to be accepted. 8. Thus, the instant application for suspension of sentence filed under Section 389 Cr.P.C. deserves to be and is hereby allowed." 7. The case of the appellant-applicant stands on the same footing as that of co-accused Ashok. Thus, the application for Suspension of Sentence deserves to be accepted. 8. Accordingly, the application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Additional Sessions Judge, Salumbar, District Udaipur vide judgment dated 28.08.2019 in Sessions Case No.15/2017 against the appellant-applicant Kishan S/o Veerji Meena 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 the satisfaction of the learned trial Judge for his appearance in this court on 28.09.2020 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. 3. Similarly, if the sureties change their address(s), 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 in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant 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 does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. 10. A copy of this order as well as the order passed in the case of Ashok shall be placed before Hon'ble the Chief Justice for suitable action.