KRIPAL SINGH Vs. STATE

JUDGEMENT

(1.) The instant application for suspension of sentences has been filed by the appellant-applicant Kripal Singh, who has been convicted and sentenced vide judgment dated 20.09.2017 passed by the learned Sessions Judge, Jalore in Sessions Case No. 5/2016 for the offences under Sections 342, 366 and 376-D of the IPC.

(2.) Learned counsel Mr. Pradeep Shah, representing the appellant-applicant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The FIR was lodged after undue delay of 5 days. Though the trial court framed charges against the appellant-applicant and the co-accused Dashrath Singh for the offences under the POCSO Act, but after appreciating the material available on record, the trial court recorded a finding at para No. 27 of its judgment that the prosecution failed to prove that the victim was a child on the date of the incident. He also drew the court's attention to the statement of the victim Mst. 'S' (P.W.8) and urged that the girl was confronted with her previous statements under Section 161 CrPC (Ex.D/4) and under Section 164 CrPC (Ex.P/6). She admitted that when she was examined by the Magistrate under Section 164 CrPC, she did not level level any allegation that she had been subjected to rape by either of the accused. Mr. Shah also drew the court's attention to the medical report (Ex.P/7), from which it is clear that apart from two small abrasions, one on the right breast and one on the right thigh of the victim, no other injury was seen on body of the girl. Her private parts were found to be healthy and having no marks of violence whatsoever. He, thus, urges that ex facie the entire prosecution case is false and fabricated and the accused appellant, who is in custody since November 2015, deserves indulgence of bail during pendency of the appeal.

(3.) Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Mr. Shah. Nonetheless, he too was not in position to dispute the fact that the FIR came to be lodged after 5 days of the incident. The victim when examined under Section 164 CrPC did not level any allegation whatsoever in her statement Ex.P/6 that she had been subjected to forcible sexual assault or penetration by any of the accused persons. Though the victim alleged in her sworn testimony that the appellant-applicant as well as the co-accused Dashrath Singh subjected her to rape on the day of the incident, but in the police statement Ex.D/4, she categorically denied that Dashrath Singh subjected to her to rape. Thus, there are significant contradictions in the testimony of the victim.