CHENA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant 3rd application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dtd. 9/6/2016 passed by the learned Sessions Judge, Balotra, District Barmer in Sessions Case No.55/2013 (142/2014) whereby he was convicted and sentenced to suffer maximum imprisonment of 20 years under Sec. 376 (d) of the IPC and lesser punishment for the other offences under Ss. 447 and 306 of the IPC. Now a long time has elapsed and appeal couldnot be heard in a reasonable period, thus, the applicant has preferred the instant 3rd bail application.

(2.) Shri Ranjeet Joshi along with Ms. Lata Sharda learned counsel appearing for the appellant-applicant Chena Ram vehemently contended that no reliance can be placed on the alleged dying declaration (Ex.P/19) because of incongruity appearing between the dying declaration and her statement (Ex.P/ 19 and Ex.P/24) if both are examined together with the other circumstances of the case. Learned counsel contend that it is not a universal truth that a person who is near to death, will never tell a lie. Otherwise also, the incident took place on 11/5/2013 but the matter was reported to the police on 14/5/2013, the alleged dying declaration (Ex.P/19) was recorded on 26/5/2013 and she died on 15/6/2013. The possibility of her being tutored, prompted or put under duress to falsely implicate the appellant-applicant cannot be ruled out. No endeavor was made to examine the deceased between 13/5/2013 to 26/5/2013. They further submit that upon careful examination of First Information Report (Ex.P/7), it is emanating that the father of the victim prompted to lodge the report after the girl immolated herself on 13/5/2013. The FIR (Ex.P/7) further reveals that the alleged act of teasing or molestation was committed on 11/5/2013 but no report to this effect was lodged on the very same day. The report does not disclose that any rape was committed upon the victim. It is manifesting from the record and her statement that she was subjected to rape well before the date of incident of burning which may be prior to six months but never ever any complaint was made in this regard. The learned trial Court convicted the appellant for the offence under Sec. 376 (d) of the IPC and sentenced him to suffer 20 years rigorous imprisonment without there being an iota of evidence to show or suggest that she was subjected to rape or continuously raped by the appellant except the so called dying declaration (Ex.P/19) and her statement (Ex.P/ 24), the sanctity of which is under grave cloud of doubt since both are having contradictions to each other on several material aspects. In Dying Declaration (Ex.P/19) recorded on 26/5/2013 by the learned Judicial Magistrate, the deceased allegedly stated that two days prior to the incident of burn, when she was in jungle, the accused appellant Chena Ram came there along with co-accused Jaita Ram and Rata Ram, all of them molested and seduced her. On the contrary, in her statement (Ex.P/24) under Sec. 161 Cr.P.C. which was recorded on 13/5/2013, she narrated the story in a different manner. However, she had alleged that three persons subjected her to rape. A significant contradiction can be noticed between dying declaration (Ex.P/19) and statement of deceased (Ex.P/24) recorded under Sec. 161 Cr.P.C. In dying declaration (Ex.P/19,) she allegedly told that accused appellant Chena Ram, co-accused Jaita Ram and Rata Ram committed offence of rape upon her. Whilst, in her statement (Ex.P/24), she alleged that accused appellant Chena Ram, Rata Ram and Angiya S/o Bula committed rape upon her so there is a change in name of one person between both the statements. The nature of causing acts by three persons are identical and the fact that sentences of co-accused of this case i.e. Jaita Ram and Rata Ram have already been suspended by the Coordinate Bench of this Court vide order dtd. 27/7/2017 passed in S.B. Criminal Suspension of Sentence Applications No.485/2017 & 775/2016, therefore, there would be no justification to keep the appellant behind the bars for further indefinite period. To dispute the genuineness and truthfulness of the allegations, learned counsel drew the attention of this Court towards the admissions made by Shri Rameshwar Lal, the Additional Superintendent of Police, Crime, Jodhpur, who conducted investigation and was examined during trial as P.W. 23 wherein he candidly admitted that deceased used to make call and text messages to the appellant Chena Ram and the same used to be reciprocated between them. The details of which are given in the statement as well as in the call detail reports Ex.D/9 and Ex.D/10. They further submit that the genuineness of the occurrence has deliberately been suppressed by the prosecution and even despite collection of call details, the same were withheld by the prosecution however, they were tendered into evidence in defence. Lastly, it is submitted that appellant is behind the bar since 16/5/2013 and in view of the cheques and balances available on record, the judgment of conviction passed by the learned trial Judge is not sustainable in eyes of law as there are more than ample grounds on the basis of which the appellant may get acquittal in appeal but there appears no hope of hearing the appeal in near future thus, sentence awarded to him may be suspended during the pendency of the appeal.

(3.) Learned Public Prosecutor has vehemently and fervently opposed the submissions made by the learned counsel for the petitioner but do not dispute the fact that the appellant-applicant is languishing in jail for around 10 years.