Kaushlendra Prapannacharya vs State Of Rajasthan

The instant application for suspension of sentence has been filed by the accused-appellant under Section 389 Cr.P.C. praying therein to suspend the sentence awarded by the trial Court.

Learned counsel appearing for the accused-appellant has argued that there are material contradictions in the testimony of the prosecution witnesses. The testimony of the victim appears to be tainted, colored and sketchy, it cannot be used for conviction of the accused-appellant. The testimony of victim suffers from infirmity in a manner so as to make it either unsafe or impossible to base a finding of guilt. Learned counsel submitted that the alleged incident took place on 07.08.2017 at Alwar but after about one and a half month, the report was lodged on 11.09.2017 at Bilaspur. The omission to make a disclosure at the earliest opportunity tending to show that the testimony of victim suffers from infirmities. The trial Court ignored the fact that the victim has stated in her statement that after the incident she went to Bilaspur on 04.09.2017 but as per the Attendance Register of the victim's college (Ex.D1), victim was present at her college which is situated at Jaipur on 04.09.2017 to 11.09.2017 and also on 16.09.2017. The Investigating Officer Mr. Shishram Meena (PW-30) in his statement admitted that as per the Attendance Register, victim was present at her college situated at Jaipur from 04.09.2017 to 11.09.2017 and also on 16.09.2017. Learned counsel submitted that on the next day of the alleged incident Mr. Amit Shukla (PW-23) and Mr. Durga Prasad (PW-24) dropped the victim at railway station. There is an enmity between the appellant and the father of victim Mr. Nand Bhan Singh on the issue of personal use of "Pendra Trust Property" which was denied by the appellant. Learned counsel further submitted that the victim is aged about 22 years and a Fourth Year Law Student. The FIR was lodged after more than one month of the incident at Bilaspur. After the incident, the victim talked to appellant on 15.08.2017. Not only this, father of victim Mr. Nand Bhan Singh (PW-7) talked to appellant but did not make any complaint with regard to the alleged incident. The aforesaid circumstances showing on the part of prosecutrix an animus against the appellant.

In support of his submissions, learned counsel for the accused-appellant has placed reliance upon the following judgments:-

Takht Singh and Ors. Versus State of M.P. reported in (2001)10 SCC 463;

Kashmira Singh versus The State of Punjab reported in AIR 1977 SC 2147;

M. Radha Hariseshu versus The State of Telangana reported in JT 2020 (8) SC;

Babu Singh and Ors. Versus The State of U.P., 1978 Cri.LJ 651;

Prahladbhai Jagabhai Patel and Anr. Versus The State of Gujarat, (2020) 3 SCC 341;

Pandurang Sitaram Bhagwat versus The State of Maharashtra, 2005 Cri.LJ 880;

Criminal Appeal No.283/2011, Parminder Kaur @ P.P. Kaur @ Soni versus The State of Punjab, decided on 28.07.2020 and;

Tomaso Bruno and Anr. Versus The State of Uttar Pradesh, (2015) 7 SCC 178.

Learned counsel further submitted that the accused- appellant is around 60 years of age, he has no criminal antecedents, he in custody since 23.09.2017 and hearing of the appeal is likely to take long and considerable time.

Learned Public Prosecutor assisted by learned counsel appearing for the complainant have opposed the submissions advanced by the learned counsel for the accused-appellant and submitted that the victim at the time of alleged incident was 22 years of age and was a Law Student of Fourth Year. The fact of delay in lodging the report at the police station is a matter of appreciation of evidence. The victim of sexual assault is not treated as an accomplice, as such, her testimony does not require any corroboration from any evidence including the evidence of a doctor. The victim does not have a strong motive to falsely implicate the appellant. The offence was committed by the accused-appellant in the 'Ashram'. The accused-appellant has been convicted by the trial Court for the charge under Section 376(2) (F) and Section 506 IPC, which is serious in nature. Thus, the application of suspension of sentence filed by the accused- appellant be dismissed.

We have heard learned counsel appearing for the respective parties and perused the material placed before the Court.

As per the statements of the prosecution witnesses, the victim stayed in the Ashram on the date of incident i.e. on 07.08.2017. Both victim and appellant were also seen talking together in the Ashram. It is also an admitted case of the prosecution that on 07.08.2017 the appellant was present in the Ashram. The accused appellant in explanatory statement under section 313 Cr.P.C. admitted that on the day of incident the victim was present in Ashram and she in the night stayed in Ashram.

We are of the opinion that the following principles are relevant while deciding the application for suspension of sentence filed under section 389 Cr.P.C. during the pendency of appeal:-

(i) Mere fact that accused was on bail and he didn't misuse the liberty, cannot be a ground.

(ii) It is really to be considered that reasons existed to suspend the execution of sentence.

(iii) In serious offences like murder, etc, appellate Court should consider the relevant factors like the nature of accusations, the manner in which the crimes is alleged to be committed, gravity of offence, and the desirability of releasing the accused on bail.

(iv) Powers u/s 389(1) should be exercised limited to very exceptional cases.

(v) Merely because an appeal has been filed in challenge of conviction, sentence should not be suspended.

Taking into consideration the overall facts and circumstances of the case, we are of the view that the present case is not a fit case where the accused-appellant is entitled for indulgence of this Court in order to suspend the sentence of the accused appellant during the pendency of the appeal.

In view of above, the application for suspension of sentence filed by the accused-appellant under Section 389 Cr.P.C. is without any merit and accordingly stands dismissed.