Victim's testimony can support conviction in absence of medical evidence; principle of parity applies to co-accused.

ORDER :

I.A. No. 2752 of 2025

1. This instant interlocutory application has been filed on behalf of appellant under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for suspension of sentence dated 27.11.2021 passed by learned District & Additional Sessions Judge-I, Lohardaga in connection with Sessions Trial No. 29 of 2019, arising out of Kisko P.S. Case No.04 of 2019 (G.R. Case No.95 of 2019) whereby and whereunder, the appellant has been convicted for the offences under Section376 (D) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for twenty years with a fine of Rs.20,000/- and in default of payment of fine, further R.I. for six months.

2. It has been contended on behalf of the appellant that although the P.W.-3, the Victim, has supported the prosecution version, but her testimony has not been supported by the Doctor, who has been examined as P.W.-5. Hence, it is a case where the judgment of conviction has been passed discarding the testimony of Doctor P.W.-5 and as such, it is fit case for suspension of sentence.

3. While on the other hand, Mr. Satish Prasad, learned counsel appearing for the State has vehemently opposed the prayer for suspension of sentence.

4. The reason has been assigned by him that the prayer for suspension of sentence of co-accused namely, Budhman @ Budhram Nagesia @ Budhman Nagesia, whose name has been disclosed by P.W.-3, Victim, along with present appellant has been rejected by Coordinate Bench of this Court vide order dated 25.08.2022 passed in Cr. Appeal (DB) No. 259 of 2022.

5. Learned counsel for the State, based upon the aforesaid ground, has submitted that P.W.-3, the victim, who has supported the prosecution version and as such, even if the Doctor has not supported the testimony of P.W.-3 cannot be said to be not a reliable evidence for the purpose of convicting the present appellant.

6. We have heard learned counsel for the parties and gone through the finding recorded by the learned trial court in the impugned judgment as also the testimony of witnesses available in the trial court record and also material exhibits.

7. The case has been listed along with the record of Cr. Appeal (DB) No. 259 of 2022 and Cr. Appeal (DB) No. 397 of 2021, the record respectively by one Budhman @ Budhram Nagesia @ Budhman Nagesia and Nand Kishore Nagesia and Bhuneshwar Nagesia. It appears from record of both the appeals i.e. Cr. Appeal (DB) No. 259 of 2022 and Cr. Appeal (DB) No. 397 of 2021 that is Nand Kishore Nagesia and Bhuneshwar Nagesia, the appellants in Cr. Appeal (DB) No. 397 of 2021 have been directed to be released on bail after suspension of sentence, whereas Budhman @ Budhram Nagesia @ Budhman Nagesia, appellant in Cr. Appeal (DB) No. 259 of 2022, whose prayer for suspension of sentence has been rejected.

8. This Court, in order to have the issue of parity to be considered, has considered the culpability said to be committed by the present appellant and for that the aforesaid purpose, we have gone through the testimony of P.W.3, the victim and found there from that the victim has disclosed the name of Budhman @ Budhram Nagesia @ Budhman Nagesia, the appellant in Cr. Appeal (DB) No. 259 of 2022 and the present appellant, namely, Akbar Nagesia along with two other persons. The name of the two other accused persons, to whom, the victim was acquainted by face has been disclosed by her. These two persons, namely, Nand Kishore Nagesia and Bhuneshwar Nagesia, the appellants in Cr. Appeal (DB) No. 397 of 2021 has been impleaded in the present case. Learned Co- ordinate Bench on taking into consideration, no specific disclosure of the names of these two persons, namely, Nand Kishore Nagesia and Bhuneshwar Nagesia, has allowed both the persons to be released on bail after suspension of sentence. But the case of the Budhman @ Budhram Nagesia @ Budhman Nagesia has been rejected. The P.W.3, since has taken the name of Budhman @ Budhram Nagesia @ Budhman Nagesia and also t