DEVNATH Vs. STATE

JUDGEMENT

(1.) Applicant-appellant has laid this second application for suspension of sentence under Sec. 389 Cr.P.C. He was convicted by the learned trial Court for offence punishable under Sec. 376 IPC and handed down sentence of 10 years rigorous imprisonment with fine of Rs.5,000,.00 and in default of payment of fine to undergo sentence for three months’ simple imprisonment.

(2.) The first application for suspension of sentence was rejected by the Court on 14th of May, 2018.

(3.) Arguing on this second application, it is submitted by Mr. K.R. Bhati, learned counsel for the applicant that applicant- appellant is in custody since last more than four years and final hearing of the main appeal at an early date is unlikely. He, therefore, submits that the prolonged custody of applicant, which is about four years, merits favourable consideration of his application for suspension of sentence. It is argued by learned counsel that the learned trial Court has completely overlooked serious contradictions and discrepancies in the testimony of prosecutrix while indicting the applicant for offence of rape. Learned counsel has also submitted that besides inconsistencies in the statements of prosecutrix, medical evidence and FSL report do not support her version. It is also submitted by learned counsel that the prosecution initially came out with a case of gang-rape against four accused persons including the applicant but then during trial no incriminating evidence was noticed against other accused persons and the prosecutrix has also changed her version by bailing out other accused persons Rama and Chhotu alias Anil. Elaborating his submissions in this behalf, learned counsel has urged that this sort of discrepancy in the testimony of prosecutrix has direct reflection on credibility of the witness, which ought to have been examined by the learned trial Court.