Aman Chaudhary vs State Of U.P. on 19 August, 2025

[Cites 40, Cited by 0]

Allahabad High Court

Aman Chaudhary vs State Of U.P. on 19 August, 2025

1. Heard Mr. Manish Tiwary, the learned Senior counsel assisted by Mr. Pranav Tiwary, the learned counsel for appellant-Aman Chaudhary, Mr. Krishna Kant Dubey, the learned counsel for appellant-Sandeep, Mr. Rahul Gaur, Advocate, holding brief of Mr. Gaurav Singh Tomar, the learned counsel for appellant-Anuj Rawat and the learned A.G.A. for State-opposite party-1.

2. Vide order dated 28.05.2025, the present appeal was admitted, lower Court record was summoned and the learned A.G.A. was directed to file his objections/counter affidavit to the application for suspension of sentence.

3. Since sentence awarded to applicant/appellant by Court below is more than 10 years, therefore, by virtue of the provisions contained in proviso to Section 389(1) Cr.P.C./proviso to Section 430(1) BNSS, no order can be passed by this Court on the application for suspension of sentence in the absence of an objection/counter affidavit to be filed by the learned A.G.A. representing State-opposite party-1 to the application for suspension of sentence/prayer for bail.

4. Learned A.G.A. has, accordingly, filed his objections/counter affidavit to the application for suspension of sentence.

5. A rejoinder affidavit has been filed by the learned counsel for applicant/appellant to the same.

6. Office has submitted a report dated 23.07.2025 stating therein that trial Court record has been received.

7. Vide order dated 02.06.2025 passed in connected Criminal Appeal No. 5052 of 2025 (Anuj Rawat Vs. State of U.P.), notice was issued to the first informant/prosecutrix.

8. List this appeal for hearing in due course.

Ref: On Application for Suspension of Sentence

1. Heard Mr. Manish Tiwary, the learned Senior counsel assisted by Mr. Pranav Tiwary, the learned counsel for applicant-appellant-Aman Chaudhary, Mr. Krishna Kant Dubey, the learned counsel for applicant-appellant-Sandeep, Mr. Rahul Gaur, Advocate, holding brief of Mr. Gaurav Singh Tomar, the learned counsel for applicant-appellant-Anuj Rawat and the learned A.G.A. for State-opposite party-1 on the application for suspension of sentence/prayer for bail in respective appeals.

2. Perused the record.

3. Feeling aggrieved by the judgement and order dated 24.4.2025/25.4.2025, passed by the Additional District and Sessions Judge/Fast Track Court No. 1, Ghaziabad in Sessions Trial No. 1485 of 2016 (State Vs. Aman Chaudhary and 2 Others) arising out of Case Crime No. 1130 of 2016, under sections 376D, 328, 506 IPC, Police Station- Kavinagar, District- Ghaziabad applicant/appellant-Aman Chaudhary has approached this Court by filing aforementioned Criminal Appeals, whereby all the named accused i.e. Sandeep, Aman Chaudhary and Anuj have been convicted.

4. The sentence awarded to applicant/appellant (and other named accused) under the impugned judgement and order is to the effect that applicant/appellant has been sentenced to 20 years rigorous imprisonment along with fine of Rs. 25,000/- for an offence under section 376D IPC and in case of default in payment of fine, applicant/appellant is to undergo one month additional imprisonment, under section 328 IPC and therefore, sentenced to 5 years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default in payment of fine, applicant/appellant is to undergo one month additional imprisonment, under section 506 IPC and therefore, sentenced to one year rigorous imprisonment along with fine of Rs. 1,000/- and in case of default in payment of fine, applicant/appellant is to undergo 15 days additional imprisonment. The impugned judgement and order further records that all the sentences shall run concurrently.

5. Learned Senior counsel for applicant/appellant-Aman Chaudhary submits that applicants/appellants-Sandeep and Aman were enlarged on bail during the pendency of trial, whereas no bail was granted to applicant/appellant Anuj Rawat. However, subsequent to the impugned judgment dated 24.4.2025 passed by Court below, applicants/appellants Sandeep and Aman were taken into custody. As such, applicants/appellants-Sandeep and Aman are under incarceration since 24.4.2025, whereas applicant-appellant-Anuj is under incarceration since 05.10.2017. Accordingly, all the applicants/appellants have filed separate applications for suspension of sentence/prayer for bail in the appeals preferred by them seeking their enlargement on bail during the pendency of respective appeals.

6. Mr. Manish Tiwary, the learned Senior counsel for applicant/appellant-Aman Chaudhary in support of the application for suspension of sentence/prayer for bail submits that though applicant/appellant is a named as well as convicted accused and undergoing incarceration, however, irrespective of above but in view of the facts as have now crystalized on record, applicant/appellant-Aman Chaudhary is liable to be enlarged on bail during the pendency of present appeal.

7. In furtherance of aforesaid submission, the learned Senior counsel submits that applicant/appellant was enlarged on bail during the pendency of trial. However, there is nothing on record to show that applicant/appellant misused the liberty of bail. On the above premise, he, therefore, submits that applicant/appellant is liable to be enlarged on bail during the pendency of present appeal also.

8. According to the learned Senior counsel, sentence awarded by Court below against applicant/appellant is a definite sentence/punishment, inasmuch as, the maximum sentence awarded to applicant/appellant by Court below is 20 years. However, in view of heavy pendency of criminal appeals before this Court coupled with the fact that there is an acute shortage of Hon'ble Judges in this Court, therefore there is no likelihood of the present appeal being heard in near future. On the above premise, the learned Senior counsel for applicant/appellant thus submits that in view of aforementioned peculiar and precarious circumstance resulting in uncertainty in the hearing of present appeal, applicant/appellant is liable to be enlarged on bail, during the pendency of present appeal.

9. To buttress his submission the learned Senior counsel referred to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 wherein the Apex Court has itself observed that where definite sentence, punishment has been awarded by Court below against an accused and there is no possibility of the appeal being heard in near future, then in such a circumstance the appellate Court must enlarge such a convict on bail during the pendency of appeal.

10. With reference to the record, the learned Senior counsel for applicant/appellant contends that there does not exist any such distinguishing feature in the case of present applicant/appellant on the basis of which the ratio laid down by Apex Court in aforementioned judgment could be so distinguished so as to deny bail to applicant/appellant, during the pendency of present appeal. It is thus urged that in view of above and the aforementioned judgment of Supreme Court, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.

11. Challenging the veracity of conviction and sentence awarded to applicant/appellant, under the impugned judgement and order passed by Court below, it is urged by the learned Senior counsel that though prosecutrix, in her deposition before Court below, has fully supported the prosecution story and her deposition has also been relied upon by Court below, however, in view of the facts and circumstances as are now discernible from the record i.e. as per the allegations made in the FIR, the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., the medical evidence on record and ultimately, her deposition before Court below, it is apparent that the prosecutrix herself is neither worthy of credit nor reliance. Consequently, the deposition of the prosecutrix is also not worthy of acceptance. Since the impugned judgment is primarily based upon the deposition of the prosecutrix herself, which is not worthy of acceptance, as such, the impugned judgement and order passed by Court below is liable to be set aside by this Court.

12. In continuation of his submission in support of the application for suspension of sentence, the learned Senior counsel for applicant/appellant submits that though F.I.R. is not the encyclopedia of prosecution case but it does disclose the basic prosecution case. In support of above, reliance is placed upon the following judgements of Supreme Court (i) Manoj@Bhau and ors. vs. State of Maharashtra, (1999) 4 SCC 268, (ii) Subhash Kumar vs. State of Uttarakhand, (2009) 6 SCC 641, (iii) Amish Devgan vs. Union of India and ors., (2021) 1 SCC. With the aid of above, the learned Senior counsel for applicant/appellant would submit that prosecution story, which is investigated by the Investigating Officer, is primarily the investigation of facts, leading to the criminality alleged to have been committed by accused as mentioned in the F.I.R, which constitutes the basic prosecution case. In view of the nature of controversy as has now emerged in present appeal, it is necessary to reproduce the F.I.R. dated 26.8.2016, lodged by prosecutrix herself. As such, the same is, accordingly, reproduced herein under:

"??? ????? ????????? ???? ??? ??????? ?????????? ?????, ???? ?????? ???? ????????? ??????? ??, ?????? ?? ?? ????????? ???????? ???????? ?? ?????? ?? ????????? ?? ???? 2013 ??? ????? ????????? ??? ???? ????? ??? ??? ????? 11 ??? ?????? ???? ?? ????????? ?? ????? ??? ??? ????? ?? ?? ????? ????????? ?? ??????? ?? ?????? 23.8.2016 ?? ????????? ?? ?????? ?? ???? 12 ??? ????? ?? ??? ????? ?? ????? ??, ?? ???? ??? ????? ???????? ?? ????????? ?? ?? ?????? ????????? ????? ??? ????? ?????? ?? ???? ????????? ?? ????? ?? ??? ? ???? ??? ?? ?? ?? ?? ??? ???? ?? ????????? ?? ????? ???? ?? ???? ?? ????? ??????? ???? ??? ??? ?? ???? ?? ??? ????? ?? ????? ?? ????? ??? ????? ????? ??????? ?? ???? ???? ????????? ?? ??? ?? ???? ??? ???? ??? ?? ???? ?? ????????? ?? ??? ???? ???? ?? ??? ??? ???? ???? ??? ?? ??? ???????? ?? ??? ?? ?????? ????????? ??? ???? ?? ????? ?? ?? ??? ???? ?? ???? ?? ???? ?? ?? ???? ????????? ?? ?? ?????? ?? ????????? ?? ??? ??? ??? ???? ?? ????????? ?? ???? ?????? ?? ?????? ????? ????????? ?? ??????? ???? ??? ???? ??? ??? ???? ?? ? ?????? ?? ????????? ?? ??? ??????? ????? ?? ???????? ?? ???????? ??????????? ???? ?? ????? ?? ?? ???? ??? ?????? 24.8.2016 ?? ??? ???? 3 ??? ???? ???? ???????? ?? ??? ??? ??????? ??????????? ?? ????? ??? ??? ?? ???? ???? ??? ?? ??? ????? ????? ?????? ?? ?? ???? ??? ?? ??? ???? ?? ????? ??? ???? ?????? ?? ???? ?????? ?? ??????? ?? ????? ?? ???? ????????? ???? ?????? ? ???? ?? ???? ?? ??? ?? ????? ???? ?????? ?? ?? ??????? ????????? ?? ??? ???? ??? ??????? ?? ?? ????????? ?? ?? ???? ??? ????? ???? ??????? ?????? ???????? ???? ?????????, ????? ????? ??????? ?????? ??????? ???? ?????? ?????????, ???? ????? ?????? ?????? ??????? ???? ?????? ???? ????????? ?? ??????? ?????? ??????? ?? ???? ????????? ???? ?? ???? ???? ?????? ??. ??? 9555520069, ???? 7053365134 ?????0 ????? ????????? ?????? ?????? ???? ???? ????? ?????? ???? ??. 240 ????????? ?????? ??????????? ????????? ???? ?????? ???? ????????? ??0 ??. 8130776999, 8130770739 ???? ?? HC 443 ????????? ??? ???????? ???? ??? ?? ????? ?? ?????? ???? ?????? ? ????? ?? ??? ????????? ?? ???? ? ???? ????????? ?????? ????? ???? ?????? ????? ???? ?? ?? ????????? ????? ?????????? ?????? ?????? ?? ????? ?????? ??? ????? ??? ???? ???? ???? ?? ???????? ???? ? ????? ?? ???? ??? ???? ???? ? ?????? ?? ?????? ???? ???? ???? ?? ???????? ????"

13. In the aforesaid backdrop, it is contended by the learned Senior counsel that the occurrence giving rise to present proceedings as per the FIR itself is alleged to have occurred on 23.8.2016, in which it is alleged that modesty of the prosecutrix was dislodged by all the named accused. As such, prosecutrix is victim of the occurrence. Irrespective of above, the F.I.R. was lodged by the prosecutrix herself after a delay of three days. However, neither in the F.I.R. nor in the statement of the prosecutrix recorded under section 161 Cr.P.C. nor in her subsequent statement recorded under section 164 Cr.P.C and ultimately in her deposition before Court below, any plausible explanation has come forward explaining the delay in lodging the delayed F.I.R. On the aforesaid conspectus, the learned Senior counsel for applicant/appellant would then submit that since there is delay in lodging the F.I.R. and that the delay in lodging the FIR has not been sufficiently explained, therefore, the criminal prosecution of applicant/appellant on the basis of such a delayed FIR is itself unsustainable in law. As such, the conviction and sentence awarded to applicant/appellant by Court below cannot be sustained.

14. The said delay in lodging the FIR by the prosecutrix assumes importance in the present case inasmuch as, the prosecutrix did not make a complaint to the police at the first opportunity available to her. According to the prosecutrix, she joined accused Sandeep on his motorcycle as a pillion passenger and went to the Gher of accused Sandeep. She has then stated (at page 102 of the paper book) that the accused and the prosecutrix returned from the Gher of accused Sandeep. The party i.e. the three accused and the prosecutrix after reaching Rajnagar in District-Ghaziabad went to a public park. It has already come in the deposition of the prosecutrix (at page 95 of the paper book) that her modesty had been dislodged at the Gher of accused Sandeep by all the three accused. Irrespective of above, she proceeds to state that while the party was at the park and had stayed there for about 5 to 7 minutes, the police had arrived and reached near them. She further alleges to have made a complaint to the police present at the park that the accused are molesting her. However, for reasons best known to her, she did not disclose to the police that her modesty had already been dislodged at the Gher of accused Sandeep. Even though, the modesty of the prosecutrix as per her own admission, stood dislodged at the Gher of accused Sandeep yet she accompanied the accused and came to Rajnagar along with them. The same does not stand explained anywhere in the entire deposition of the prosecutrix. According to the prosecutrix, on the next day of the occurrence i.e. 24.08.2016, the prosecutrix was dropped near Raj Gas Agency in Shastri Nagar Ghaziabad and near the said Gas Agency is the Shastri Nagar Police Outpost. Here again, the prosecutrix did not go to the police Outpost complaining about the criminality committed by the accused upon her but went to her home. This conduct on the part of the prosecutrix also remains unexplained.

15. On the above conspectus, the learned Senior counsel vehemently urged that there is deliberate and unexplained delay in lodging the FIR. The facts and circumstances as have emerged on record and noted herein above, clearly show that present case is a case of malicious and false prosecution on the basis of an afterthough on the part of the prosecutrix resulting in a delayed FIR. As no explanation worth acceptance has come forward explaining the delay in lodging the FIR and further the facts as noted above clearly expose the bona-fide of the prosecutrix, therefore, the criminal prosecution of accused on the basis of such a delayed FIR cannot be sustained. To buttress his submission, the learned Senior counsel relied upon the judgment of Supreme Court in Rajesh Patel Vs. State of Jharkhand, (2013) 13 SCC 791.

16. Learned Senior counsel has then taken the Court to the FIR, which has already been quoted herein above. With reference to the same, he submits that three allegations adverse to the named accused have emerged therein as per the basic prosecution case. Firstly the prosecutrix was forced to drink beer and secondly an obscene video of the prosecutrix was prepared. According to the learned Senior counsel, both the allegations made in the FIR are factually incorrect. The same have been made only to give colour to the FIR. Learned Senior counsel invited the attention of Court to the deposition of the prosecutrix and referred to page 95 of the paper book. The prosecutrix in her deposition at aforesaid page has already stated that beer was consumed by three persons namely Anuj, Aman and the prosecutrix. No where has the prosecutrix stated that she was forced or coerced to drink beer. Therefore, it is falsely stated in the FIR that the prosecutrix was forced to drink beer. It is also contended by the learned Senior counsel that as per the own case of the prosecutrix, her modesty had been dislodged in the Gher of Sandeep (after the prosecutrix and 3 others had taken cold drink and she felt intoxicated) yet in spite of above, she accompanied the accused and then again consumed beer.

17. Sofaras the second allegation is concerned that an obscene video of the prosecutrix was prepared, the learned Senior counsel would contend that neither the FIR was registered under Section 67 IT Act nor any obscene material was recovered from the possession of accused or on the pointing of accused. Accordingly, the accused including applicant/appellant have not been charge sheeted under Section 67 of the IT Act. Thus the basic prosecution case to that extent stands demolished like a house of cards.

18. It is further contended by the learned Senior counsel that apart from the aforementioned allegations, there is another allegation made in the FIR i.e. dislodging the modesty of the prosecutrix in the Gher of Sandeep. In the submission of the learned Senior counsel, the said allegation is concocted and appears to have been engineered to make a case of sexual assault by playing deceit so as to make the prosecution story probable. In this regard, the learned Senior counsel referred to the deposition of the prosecutrix herself and has referred to page 99 of the paper book, wherein the prosecutrix has deposed regarding aforesaid fact i.e. she was offered a cold drink and after taking the same, she felt intoxicated. The prosecutrix has clearly stated at page 99 of the paper book that the bottle of cold drink was taken out from the refrigerator and there was only bottle of cold drink. It was opened in front of her and all the four persons i.e. the accused and the prosecutrix had partaken the same. In view of above, no offence under Section 328 IPC can be said to be made out against the accused as there is no evidence to show that in the bottle of cold drink, some stupefying intoxicating substance was mixed. The prosecutrix then goes to state that after having taken the cold drink, she alone felt intoxicated and thereafter, her modesty was dislodged by all the accused. However, irrespective of above, she has also stated that she joined the accused and they all came together to Rajnagar Ghaziabad. She gained conciousness at 3-4 p.m. while on the way to Raj Nagar extension.

19. Attention of the Court was then invited to the statement of the prosecutrix recorded under section 164 Cr.P.C. wherein the prosecutrix has departed from the prosecution story as unfolded in the F.I.R. He, therefore, submits that in view of above, the Investigating Officer was faced with a dilemma as to whether, the prosecution story as unfolded in the F.I.R. or as developed in the statement of the prosecutrix recorded under Section 164 Cr.P.C. is correct inasmuch as, the two are totally divergent with regard to the manner of occurrence. Therefore in view of aforesaid paradoxical situation, no investigation could have been conducted as two prosecution stories have been set out by the prosecutrix herself. For ready reference, the deposition of the prosecutrix under Section 164 Cr.P.C. is extracted herein below:-

"?????????? 164 ????????

???- ?????? ???? 19 ???? ?????? ???? ??? ???????? ???????? ???? ?????? ????????? ?? ???? ???????? ??? ???? ???? ???? ?? ?????? 23.07.16 ?? ???? ?? ?? ???? ????? ?? ???? ??? ??? ?? ???? ???? ?????? ?? ?? ?????? ?? ???? ?? ??? ?? 12.00 ??? ???? ??? ???? ???? ???? ?? ??? ?? ????? ???? ???? ???? ???? ???? ??? ??? ?? ????? ?? ???? ?? ????? ?? ??? ??? ????? ???? ?? ??? ?????? ??? ???? ??? ???? ??? ????? ???? ?? ?? ??? ???? ??? ???? ??? ? ??? ??? ??? ?? ?? ???? ??? ??? ??? ?? ????? ?????? ????? ???? ?? ??? ??? ??? ?? ??? ???? ??? ??? ??? ???? ??? ??? ????? ???? ?? ??? ??? ??? ?? ??? ?? ???? ????? ???? ?? ???? ?? ???? ?????? ??????????? ?? ??? ???? ???? ???? ???? ??? ???? ???? ??? ???? ???? ?? ?? ??? ????? ?? ????? ?? ?? ???? ?? ?? ???? ??? ???? ??? ??? ??? ??????? ??????????? ??? ???? ??? ??! ???? ?? ?? ??? ??? ?? ????? ???? ??? ?? ???? ??? ??? ?? ?? ??? ?? ????? ??? ??? ???? ????? ???? ??? ?? ???? ?? ?? ?? ???? ???? ?? ???? ??? ?? ?? ?? ??? ?? ?? ????"

20. Learned Senior counsel for applicant/appellant-Aman Chaudhary then referred to the deposition of the prosecutrix, who deposed before Court below as P.W.1. He invited the attention of Court to the deposition of prosecutrix as explicit from pages 111, 112 and 113 of the paper book, wherein a specific suggestion was made to the prosecutrix as to whether the version of prosecution story as unfolded in the F.I.R. is correct or the prosecution story as disclosed in the statement recorded under Section 164 Cr.P.C. is correct. The prosecutrix, in answer to the said question, replied that both are correct, which itself is a ground to disbelieve the prosecutrix. However, irrespective of above, Court below has awarded conviction and sentence to applicant/appellant and other co-accused, which is illegal. Learned Senior counsel would, therefore, contend that the impugned judgment and order passed by Court below is, therefore, liable to be set aside by this Court.

21. According to the learned Senior counsel for applicant/appellant the medical evidence does not support the ocular version of the occurrence. Referring to the medico legal examination report of the prosecutrix, the learned Senior counsel urged before Court that the prosecutrix has not sustained any such injury on her person so as to denote commission of deliberate or forceful sexual assault. Reference was then made to the medico legal report of the prosecutrix, which is on record. Since the photocopy of the same appended along with the paper book, is blurred, therefore, the same was also examined from the original record. Attention of the Court was invited to the endorsement, which is at column no. 22 on the right hand side and the corresponding column on the left hand side. For ready reference, the same is extracted herein below:-

"????? ??????? ?? ????? - 22.08.16. 22- ???????????/???? ??????? (Haemomrrhage/other discharge) She is having menses."

22. With reference to the same, it is thus urged by the learned Senior counsel for applicant/appellant that since the biological condition of prosecutrix was not such that the alleged criminality could have been committed upon her, therefore, the prosecution case that rape was committed upon the prosecutrix is not substantiated/supported by the medical evidence on record. In short, the submission is that the medical evidence does not support the ocular version of the occurrence. It is thus contended by the learned Senior counsel that since the medical evidence is clearly adverse to the prosecution case and does not support the prosecution case, therefore, the prosecution story as alleged by the prosecutrix is neither worthy of credit nor reliance.

23. Attention of the Court was then invited to Section 375 IPC. For ready reference, the same is reproduced herein below;-

"Section 375 IPC : Rape -

A man is said to commit "rape" if he?

(a)penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of the following seven descriptions:?

(First.)? Against her will.

(Secondly.) ? Without her consent.

(Thirdly.) ? With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) ? With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly.) ? With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly.) ? With or without her consent, when she is under eighteen years of age.

(Seventhly.) ? When she is unable to communicate consent."

With reference to above, the learned Senior counsel for applicant/appellant contends that an accused can be convicted for an offence under Section 376 IPC provided any of the condition specified in Section 375 IPC stands satisfied. The manner of criminality alleged to have been committed upon the prosecutrix has not been detailed in the FIR but has been stated in her deposition before Court below. As already noted above, the only allegation which has emerged in the deposition of the prosecutrix before Court below that rape was committed upon her by named accused. The relevant portion of the same is at the bottom of page 95 and at the top of page 96 of the paper book. However, in view of the fact that the prosecutrix was not in such a biological condition so as to have sexual intercourse, therefore, the said allegation made by the prosecutrix is unworthy of acceptance as it stands belied by the medical evidence on record.

24. Learned Senior Counsel has then referred to pages 94, 108 and 118 of the paper book and with reference to the same, he submits that the prosecution story as unfolded in the deposition of prosecutrix is unworthy of acceptance. Prosecutrix in her deposition before Court below herself stated that she was not acquainted with the applicant/appellant since long. They were just acquainted only one week and few days ago, yet in spite of above, she joined the accused on a phone call. The same goes to expose the improbable character of the prosecution case.

24. Learned Senior counsel for applicant/appellant, with reference to the deposition of prosecutrix, submits that the manner in which, the criminality is alleged to have been committed by the accused is highly improbable and unworthy of acceptance. The way, the prosecutrix has conducted herself from the time she left her home on the phone call of one of the co-accused up to the stage of her deposition before Court below does not inspire confidence and the prosecution story appears to be a jumble of facts. The same is neither worthy of credit and acceptance nor the same is of such character that even a man of ordinary prudence would accept it. Learned Senior counsel then referred to the judgment of this Court in Anwar @ Sunny @ Kauwal Vs. State of U,P. (2016) SCC On line Alld 49, wherein almost in similar situation the Court disbelieved the prosecutrix even when the proseutrix had duly supported the prosecution story in her deposition before Court below. The Court in aforementioned case, evaluated the deposition of the prosecutrix, in the light of her previous statements , evidence and other attending circumstances on record. After having undertaken the aforesaid exercise, Court, ultimately, concluded that even though the prosecutrix in her deposition before Court below has fully supported the prosecution story yet the same is not worthy of acceptance on its face value. However, irrespective of above, the conviction and sentence of accused can be sustained even when the deposition of prosecutrix is not liable to be accepted, provided there is other direct and substantive evidence on record to sustain the conviction of the accused. The said conclusion was drawn by Court on the basis of the judgment of Supreme Court in Vishnu @ Undrya Vs. State of Maharashtra, (2006) 1 SCC 283, wherein the Court held that even if the prosecutrix in her deposition before Court has supported the prosecution story but the Court finds it diffent to accept the deposition of the prosecutrix on it's face value yet the conviction of an accused provides there is some direct, substantive, circumstantial or inferential evidence on record.

25. Learned Senior counsel for applicant/appellant submits that there is no such direct, indirect, substantial or inferential evidence on record, on the basis of which, the prosecution story can be said to be probable or reliable and therefore, can be corroborated by any evidence. It is further submitted that present prosecution was engineered only for the purpose of extorting money. In fact much emphasis was laid on the medical examination report of the prosecutrix on the basis of which, it was vehemently and strenuously contended that since biological condition of prosecutrix was not such that the alleged criminality could have been committed upon her by the accused i.e. applicant/appellant and others, the prosecution story is not worthy of acceptance.

26. Attention of the Court was also invited to the statement of the prosecutrix which is at page 71 of the paper book i.e. the statement of the prosecutrix under section 161 Cr.P.C. wherein she has stated that no stupefying substance was added in the cold drink. Reference was made to page 95 of the paper book, wherein the prosecutrix has clearly and categorically stated that cold drink bottle was opened in front of the prosecutrix and thereafter, it was served to the prosecutrix as well as the accused. Reference was then made to the recital occurring at page 99 of the paper book, wherein prosecutrix has stated as to how the cold drink was consumed but there is no recital therein that cold drink was mixed with some stupefying substance. Drawing a parallel in between the previous statement of the prosecutrix recorded under section 161 Cr.P.C. and her deposition before Court below, on the aforesaid aspect, the learned Senior counsel for applicant/appellant submits that court below has awarded conviction and sentence under Section 328 IPC in a cursory manner.

27. Learned Senior counsel then referred to the paragraph 23 of the judgement. With reference to the same, the learned Senior counsel for applicant/appellant submits that Court below in aforementioned paragraphs has synchronized the reasons for awarding conviction and sentence to applicant/appellant. However, in view of the submissions urged in support of the present application for suspension of sentence (as noted herein above), none of the reasons assinged by Court below for convicting and sentencing the applicant/appellant are sustainable in law and fact.

28. It is lastly contended by the learned Senior counsel that sentence awarded to applicant/appellant is 20 years rigorous sentence. The same is a synonym for life sentence. At this juncture, the learned Senior counsel referred to the judgement of Supreme Court in Omprakash Sahni Vs. Jai Shankar Chaudhary, (2006) 6 SCC 123, wherein the Apex Court has observed that in the case of a life convict, bail can be granted to a convict in an appeal relating to life sentence but only if the Appellate Court records a finding that prima-facie the appeal is liable to be allowed. On the above premise, the learned Senior counsel for applicant/appellant submits that since in view of the facts and circumstances pointed out herein above, prima facie the present appeal is liable to be allowed by this Court therefore, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.

29. Even otherwise, applicant/appellant is a man of clean antecedents having no criminal history to this credit except the present one. Accused/applicant/appellant is a young man below 30 years of age. In view of the facts and circumstances as are now clearly discernible from the record, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal. In case, the applicant/appellant is enlarged on bail then in that eventuality, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

30. Per contra, the learned A.G.A. representing State/opposite party-1 has opposed the prayer for bail. Learned A.G.A. submits that since applicant/appellant is a named as well as convicted accused and under incarceration, therefore, he does not deserve any indulgence by this Court. Applicant/appellant and co-accused have dislodged the modesty of the prosecutrix, who was a young and innocent girl aged about 19 years at the time of occurrence, deliberately and by playing deciet. In view of above, the criminality committed by applicant/appellant along with the other co-accused is not only illegal but also immoral. In fact, the same amounts to a crime against society and therefore, not private in nature. On the above conspectus, the nature and gravity of offence complained of as well as the period of sentence awarded by Court below to the accused including applicant/appellant, the learned A.G.A. would submit that interest of justice shall better be served, in case, the appeal itself is heard finally by fixing a short date rather than enlarging the applicant/appellant on bail, during the pendency of present appeal.

31. Learned A.G.A. has then referred to the impugned judgement and invited the attention of Court to the recital occurring at internal pages 5 and 6 of the impugned judgement. With reference to the same, learned A.G.A. submits that all the adverse circumstances were placed before accused in question answer form as are required to be disclosed in view of the mandate of Section 313 Cr.P.C. All the questions were denied by the accused including applicant/appellant either by giving a bald reply or a vague denial. Even though sufficient liberty was granted by Court below to the accused to bring in their defence evidence but no attempt was made by the accused including applicant/appellant in that regard. However, after the statement of accused was recorded under section 313 Cr.P.C. neither any application under section 315 Cr.P.C. was filed by accused before Court below to bring in defence evidence nor the accused themselves appeared before Court below as defence witness to give their version of the occurrence or to prove the malicious/false prosecution of the accused. As such, the only version of the occurrence is the prosecution version.

32. Attention of the Court was then invited by the learned A.G.A. to the judgement of Supreme Court in Jothiragawan Vs. State, 2025 SCC OnLine SC 628, wherein Court has held that even if the accused and the prosecutrix are in consensual relationship but no consent was given by the prosecutrix for having sexual intercourse then simply by contending that since parties were in consensual relationship, the accused shall not stand absolved of the criminality (rape) committed by him. According to the learned AGA, the prosecutrix, in her entire deposition, has not made a statement to the effect that she had consented for having sexual intercourse with the accused. As such, modesty of the prosecutrix was dislodged without her consent, therefore, deliberately. Apart from above, all the three accused dislodged her modesty, which itself goes to show that no consent was given. In view of above, it is thus evident that the modesty of the prosecutrix stood dislodged due to a deliberate act of all the accused. As such, no illegality or infirmity can be attached to the conviction and sentence awarded to accused including applicant/appellant by Court below.

33. Apart from above, the plea of consent, the presumption under section 114A of the evidence act have also been raised by the learned A.G.A. Elaborating his submission, the learned A.G.A. submits that as per the deposition of prosecutrix, no categorical or implied consent for having voluntary sexual intercourse with the accused is explicit from the same nor as per the statement of accused recorded under Section 313 Cr.P.C., the presumption arising out against applicant/appellant under section 114 A of the Evidence Act, stands discharged. Since accused including applicant/appellant failed to discharge the said burden, which was required to be discharged, therefore, no illegality has been committed by Court below in passing the impugned judgement and order.

34. It is further contended by the learned A.G.A. that even if the medical evidence does not support the prosecution story but if the prosecutrix, in her deposition before Court states that rape was committed upon her then in such a situation the same has to be accepted by Court. In support of aforesaid submission, reference was made to the judgement of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74, wherein following has been observed in paragraphs 5.2, 5.3, 5.4, 5.5, 8, 9, 10, of the report;-

"5.2. It is submitted that once it is found that the prosecutrix is reliable and trustworthy, in that case, there can be a conviction for the offence of rape ? Section 376 IPC, relying upon the deposition of the sole witness/victim. Reliance is placed on the decisions of this Court in the cases of Ganesan v. State, (2020) 10 SCC 573; Santosh Prasad v. State of Bihar, (2020) 3 SCC 443; State of H.P. v. Manga Singh, (2019) 16 SCC 759; and State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.

5.3. It is submitted that in the case of Pankaj Chaudhary (supra), it is specifically observed and held by this Court that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration.

5.4. Now so far as the submission on behalf of the accused, relying upon the deposition of the doctor-PW1 that there were no external or internal injuries found in the person of the prosecutrix and therefore the prosecution case is not to be believed, as not supported by any corroborative evidence and/or that it is to be presumed that it was a case of consent is concerned, it is submitted that first of all the prosecutrix has been medically examined after three days of the incident. It is submitted that the prosecutrix is consistent in her evidence right from the very beginning and even in the cross-examination also she has stood by what she has stated and she has fully supported the case of the prosecution. It is submitted therefore that in the facts and circumstances of the case and even in the absence of any external or internal injuries in the person of the prosecutrix, the conviction can be sustained.

5.5. It is further submitted that even there is no suggestion in the cross- examination of the prosecutrix that it was a case of consent.

8. In the case of Ganesan (supra), this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it is observed and held as under:

10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98) "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'

10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) '12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'

11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) '8. ? The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ? The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ? Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ? ***

21. ? The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.' (emphasis in original)

12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].

14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."

10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130], it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21]. In para 22, it is observed and held as under: (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

9. In the case of Pankaj Chaudhary (supra), it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:

"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."

10.In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In paragraphs 6 and 7, it is observed and held as under:

"6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]

7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635)."

35. It is thus contended by the learned A.G.A. that since the prosecutrix in her deposition before Court below has clearly and categorically stated that her modesty was dislodged by applicant/appellant and other co-accused by forcefully and deliberately committing rape upon her, the same is liable to be accepted. There is nothing on record to infer false or malicious prosecution of the accused either. He, therefore, submits that in view of above, the submissions urged by the learned Senior counsel for applicant/appellant, in support of the application for suspension of sentence do not create a dent in the impugned judgment and order and therefore, the application for suspension of sentence is liable to be rejected.

36. In rejoinder, the learned Senior counsel for applicant/appellant has rejoined the submissions previously urged by him. Learned senior counsel for applicant/appellant invited the attention of Court to the medico legal examination report of the prosecutrix and on basis thereof he submits that in view of the biological condition of the prosecutrix, the alleged criminality could not have been committed upon the prosecutrix in the manner alleged by her. Elaborating the aforesaid submission, reference was made to the deposition of prosecutrix as occurring at the bottom of page 95 and opening part of page 96 of the paper book, wherein the prosecutrix has clearly detailed the manner of occurrence. Reference was then made to the deposition of the prosecutrix and by pointing out the relevant portions, the learned Senior counsel submits that firstly the prosecutrix is herself not clear and specific about the very story, which she set out to prove and secondly, the conduct of the prosecutrix as detailed by her in her deposition before Court below itself does not inspire confidence in the prosecution story. With reference to the entire chain of events that have occurred i.e. the prosecutrix leaving her home on the phone call and reaching her home on the next day, the learned Senior counsel would submit that the deposition of the prosecutrix before Court below is nothing else but a fanciful story, unworthy of acceptance and reliance. He, therefore, contends that in view of above applicant/applicant is liable to be enlarged on bail during the pendency of present appeal.

37. Having heard the learned Senior counsel for applicant/appellant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made this Court finds that applicant/appellant-Aman Chaudhary along with co-accused Sandeep and Anuj are named and convicted accused, two of the accused i.e. applicant/appellant-Aman and co-accused-Sandeep, applicant/appellant in connected appeal were enlarged on bail during the pendency of trial, however, there is noting on record to show that aforementioned accused misused the liberty of bail, applicant/appellant has been sentenced to 20 years maximum sentence, by court below, as such sentence awarded by Court below to applicant-appellant is a definite sentence punishment, however, in view of heavy pendency of criminal appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future, as such, in view of aforementioned peculiar and precarious circumstance, there is uncertainty in the hearing of present appeal in near future, therefore, prima facie applicant/appellant is liable to be to be enlarged on bail, during the pendency of present appeal, the Apex Court in the case of Atul @ Ashutosh (Supra) has itself observed that where sentence awarded to a convict is a definite sentence punishment and there are no chances of the appeal being heard in near future, then in such a circumstance such a convict should be enlarged on bail during the pendency of appeal, the learned A.G.A. could not point out any such distinguishing feature from record so as to distinguish aforementioned judgement and deny bail to applicant/appellant during the pendency of present appeal, though F.I.R. is not the encyclopedia of the prosecution case but it does reflect the basic prosecution case, however, irrespective of above, the prosecutrix in her statement under section 164 Cr.P.C. has departed from the prosecution story as unfolded in the F.I.R., as such, there is clear embellishment, exaggeration and contradiction in her aforesaid statement, however, no explanation has come forward from the prosecutrix regarding the aforesaid emerging in her above-mentioned statement, prosecutrix who deposed before Court below as P.W.1 has fully supported the F.I.R., however, on a specific suggestion made to her as to whether, the prosecution story, which is one detailed in the F.I.R., is correct or the other emerging in the statement of the prosecutrix recorded under section 164 Cr.P.C. is correct, the prosecutrix has categorically replied by submitting that both are correct, in view of above and other admissions made by the prosecutrix, in her deposition before court below, which are quite in number, it is clear that the prosecutrix herself is not clear about the very story which she set out to prove, the medical evidence does not support the ocular version of the occurrence inasmuch as, the prosecutrix has not sustained any injury on her person so as to denote commission of deliberate/forceful sexual assault, though the Apex Court has held that even if the medical evidence does not support the ocular version but if the prosecutrix in her deposition alleges stated that her modesty was dislodged then the Court is bound to accpet such a statement, however, such statement of the prosecutrix should be clear and categorical and prima-facie acceptable, even if the aforesaid test is applied to the deposition of the prosecutrix yet the same is unworthy of reliance as the prosecutrix was not in such a biological condition that her modesty could have been dislodged by committing rape in the manner as alleged to have been committed upon her, as such, prima facie the deposition of the prosecutrix that all the three accused dislodged her modesty deliberately and forcibly, does not appear to be worthy of acceptance, the term rape has been defined in section 375 IPC, after the amendment which took place in IPC in the year 2013, the definition of term rape has been widened, however, the Court is not to go by a general statement of the prosecutrix that the modesty of the prosecutrix was dislodged by committing rape upon her, but has to flush out the manner of occurrence and then find out, which of the condition/conditions mentioned in Section 375 IPC stand satisfied, when a parallel is drawn in between the provisions of Section 375 IPC on the one hand and the deposition of the prosecutrix particularly with reference to her deposition before Court below as transcripted at pages 95/96 of the paper book, wherein the prosecutrix has stated about the manner of occurrence, this Court finds that the alleged criminality could not have been committed upon the prosecutrix as the prosecutrix was not in such a biological condition that her modesty could have been dislodged by committing rape upon her, in the manner as alleged, as such, the medical evidence does not support the ocular version of the occurrence, the Apex Court in the case of Vishnu @ Undrya Vs. State of Maharashtra, (2006) 1 SCC (Cri) 217 has held that if the prosecutrix has deposed before Court below and she has fully supported the prosecution story but if the Court finds that her deposition is not worthy of acceptance on it's face value, yet the prosecution of an accused can be sustained, if there is other direct, substantial, circumstantial or inferential evidence to sustain the prosecution of an accused, however, when the ratio laid down by the Apex Court in aforementioned judgment is considered in the light of the material/evidence, which has emerged in the present case, this Court finds that the prosecutrix in her statement under Section 164 Cr.P.C. has departed from the prosecution story as unfolded in the FIR, secondly, she in her deposition before Court below has stated that the allegation made in the FIR/facts stated in the statement under Section 164 Cr.P.C., both are correct, the improbable character in the prosecution case that has emerged on record goes to show that the prosecutrix herself is not clear about the very story, which she set out to prove and lastly the biological condition of the prosecutrix was not such that the alleged criminality could have been committed upon her in the manner alleged by her, therefore, in view of above, though the prosecutrix in her deposition before Court below has supported the prosecution story but prima-facie, her deposition is not liable to be accepted on it's face value, the other circumstances/evidence on record as noted above also do not support the prosecution story, in the case of Anwar (Supra), which on facts is substantially similar to the case in hand, a co-ordinate Bench of this Court applied the test laid down by the Apex Court in the case of Vishnu Urdya (Supra), to find out any other evidence from the record to sustain the conviction and sentence awarded to accused therein by Court below, however, even after taking a detailed exercise i.e. examiningthe statements of the prosecutrix previously recorded, the medical evidence etc. the Court disbelieved the prosecutrix, even though, she, in her deposition before Court below, fully supported the prosecution story and concluded that her deposition is not worthy of acceptance on it's face value, when the aforesaid test is applied in the present case, the deposition of the prosecutrix before Court below is also not worthy of acceptance on it's face value for the reasons noted above, it was urged on behalf of A.G.A. that in the entire deposition of the prosecutrix, she has nowhere stated that she consented for voluntary sexual intercourse with the accused, therefore, even if there was acquaintance and affinity between the parties, the criminality alleged to have been committed by accused/applicants/appellants shall not stand absolved on the aforesaid ground and in support of the said submission, reliance was placed upon the judgment of Supreme Court in Jothiragawan (Supra), the said submission of the learned A.G.A. though appears to be attractive but is devoid of merit inasmuch as, the very modesty of the prosecutrix having been dislodged does not prima-facie stand proved from the record as the prosecutrix was not in such a biological state of affairs that her modesty could have been dislodged in the manner alleged by her, therefore, the question of consent/no consent becomes irrelevant and meaningless, applicants/appellants have also been convicted and sentenced for an offence under Section 328 IPC but the same is also prima-facie unsustainable, inasmuch as, according to the prosecutrix herself, the bottle of cold drink was taken out from the refrigerator in front of her, it was opened in front of her and consumed by two of the accused and the prosecutrix. There is no averment in the entire deposition that some stupefying or intoxicating material was mixed in the bottle of cold drink. Apart from above, the prosecutrix alone felt intoxicated, the conduct of the prosecutrix right from the time, she left her home on the phone call of one of the accused up to her reaching home on the next day also does not inspire confidence, therefore, irrespective of the objections raised by the learned A.G.A. in view of the law laid down by this Court in the case of Anwar (supra) the prosecutrix is prima facie neither worthy of acceptance nor reliance, the Apex Court in the case of Om Prakash (Supra), has observed that in case of a life convict, if the Appellate Court records a finding that prima facie the appeal is liable to be allowed only then an accused can be enlarged on bail, stands attracted as sentence awarded to applicant/appellant by Court below is 20 years, which is a synonyms of life imprisonment, prima faice the present appeal is liable to be allowed, as such, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal, no such incriminating circumstance has emerged on record either so as to warrant custodial arrest of applicant/appellant during the pendency of present appeal, therefore, considering the above and irrespective of the objections raised by the learned A.G.A. in opposition to this application for suspension of sentence, but without making any comment on the merits of the appeal, this Court finds that applicant/appellant has made out a case for bail.

39. In view of the discussion made above, the present application for suspension of sentence succeeds and is liable to be allowed.

40. It is, accordingly, Allowed.

41. Let the applicant/appellant- Aman Chaudhary be released on bail in aforementioned case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

42. It is however provided that the amount of the fine awarded against applicant/appellant by Court below shall be deposited by applicant/appellant with the court below, within a period of two months from today, failing which the bail granted to applicant/appellant under this order shall stand cancelled and he shall be taken into custody forthwith to serve out the sentence awarded by Court below.

Order Date :- 19.8.2025 Arshad

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Allahabad High Court