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2022 DIGILAW 2657 (RAJ)

Kulvinder Singh v. State Of Rajasthan

2022-10-21

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - Heard learned counsel for the parties. 2. Learned counsel for the applicant-appellant has drawn attention of this Court to the para-54 of the judgment dated 08.09.2022 passed by learned Special Judge, Special Court (Protection of Children from Sexual Offences) Act, 2012 and Commission for Protection of Child Rights Act, 2005, No. 2, Sri. Ganganagar, which reads as follows:- 3. Learned counsel for the applicant-appellant submits the impugned order dated 08.09.2022 passed by the learned court below, at para-54 as quoted hereinabove, clearly reveals that the prosecutrix travelled with the applicant-appellant from one public place to another, of her own free will and consent. He further submits that on 28.10.2015 i.e. date of incident the prosecutrix travelled alongwith the applicant-appellant from one public place to another, from her village to Gajsinghpur by tractor trolly, from Gajsinghpur to Bikaner via train and Bikaner to Jaisalmer via train. And that, the applicant-appellant and the prosecutrix stayed at Jaisalmer Bus stand for about two days. 4. Learned counsel for the applicant-appellant further submits that the prosecutrix' story does not hold water as there are certain material omissions in her statements made before the concerned police authorities; being that she did not make any mention of the accused-applicant-Kulvinder Singh ' Kinda nor was there any mention of the spray bottle, as was alleged. 5. Learned PP opposed the application suspension of sentence application but is unable to refute the aforesaid submissions. 6. Having regard to the facts and circumstances of the case and upon a consideration of the arguments advanced at the Bar, this Court is of the opinion that the bail application for suspension of sentence filed by the petitioner deserves to be accepted. 7. This Court, on a perusal of the record, specifically Paragraph 54 of the impugned order dated 08.09.2022, as quoted hereinabove would reveal that the prosecutrix travelled with the applicant-appellant of her own volition and with consent. That she travelled through multiple public places without raising any hue and cry, is not believable. Furthermore, looking to the fact that the present case is before this Court at the stage of suspension of sentence, and looking into the judgment rendered by the Hon'ble Apex Court in the case of Md. alias Guddu v. State of U.P. decd. On 10.03.2015, which reads as follows:- "21. Furthermore, looking to the fact that the present case is before this Court at the stage of suspension of sentence, and looking into the judgment rendered by the Hon'ble Apex Court in the case of Md. alias Guddu v. State of U.P. decd. On 10.03.2015, which reads as follows:- "21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same." 8. Accordingly, looking into the peculiar factual matrix of the case and the aforementioned case of Md. Alias Guddu (supra), this S.B. Suspension of Sentence Application (Appeal) 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 08.09.2022 in Sessions Case No. 177/2021 against appellant-Kulvinder Singh S/o Sh. Gurmukh Singh shall remain suspended till final disposal of the aforesaid appeal, 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 court/link court for his appearance in this court on 22.11.2022 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 appellants change 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. 9. The learned trial Court shall keep the record of attendance of the accused-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-appellant were 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-appellant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.