(1 of 5) [SOSA-641/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Misc. (SOS) Application No.641/2021
In
D.B. Criminal Appeal No. 197/2019
Mahesh Kumar S/o Shri Lalaram B/c Raigar, Aged About 21
Years, R/o Gohandi Ps Phagi Dist. Jaipur Raj. (At Present
Confined In Central Jail Jaipur)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
_ For Appellant(s) : Mr. Anil Kumar Upman For Respondent(s) : Ms. Alka Bhatnagar, AGA HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE RAMESHWAR VYAS Order 16/08/2021 The instant Suspension of Sentence application has been preferred on behalf of appellant Mahesh Kumar S/o Lalaram who has been convicted and sentenced vide impugned judgment and order dated 20.04.2019 passed by learned Special Judge, Protection of Children from Sexual Offences Act, 2012, Jaipur District.
Reply to the application for Suspension of Sentence on behalf of respondent has been filed.
We have considered the submissions advanced at bar and have gone through the judgment and record. The appellant has been convicted for alleged sexual assault on victim Mst. 'N'. The FIR Ex.P1 came to be lodged by Jagdish PW2 at police station Phagi, District Jaipur alleging inter alia that the victim Mst. 'M' was (Downloaded on 17/08/2021 at 10:17:00 PM) (2 of 5) [SOSA-641/2021] aged about 15 years (D.O.B. 15.05.1998) and that, she was student of 8th standard. He and his family members had gone out of village on October, 2013 and the victim was all alone in the house. The appellant herein allegedly raped the victim by taking advantage of absence of the family members and also snapped some indecent photographs of victim and threatened her of dire consequence in case she told of this incident to anybody. Fearing repercussions, the victim did not tell anyone of the incident. The accused-appellant was exploiting the victim on the strength of the photographs. Lastly, in the month of January, 2014, the appellant subjected the victim to forcible sexual assault but because of the fear of her image being tarnished in the society, the girl did not tell anyone of the incident. However in the month of April, 2014 she mustered courage and told him of her plight. On 09.04.2014 Mahesh and his father threatened the informant and his daughter of dire consequence if the matter was reported to the police. The informant ultimately approached the police with the report Ex.P1 whereupon FIR No.142/2014 came to be registered at the police station Phagi on 09.04.2014.
During trial, the victim Mst. 'N' PW1 alleged in her testimony that accused-appellant came to their house on finding her alone and subjected her to rape. He also snapped her pictures. Thereafter, accused regularly visited her house and repeatedly subjected to sexual intercourse. She became pregnant upon which the accused gave her some tablets to consume and after taking them she became unwell. Her uncle and aunt took her to hospital. She gave birth to a daughter who could not survive. After the child was born, the report came to be submitted.
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(3 of 5) [SOSA-641/2021] Learned counsel Shri Anil Kumar Upman urged that as a matter of fact the relations between the appellant and the victim were consensual. The prosecution did not prove the school record pertaining to initial admission of the girl in the school & only the documents of higher classes were exhibited. In defence, the Ration Card Ex.D2 was proved wherein the date of birth of the victim was mentioned as 31.08.1994. Shri Upman, thus urged that the accused-appellant who is in jail since last seven years deserves indulgence of bail during pendency of the appeal.
Learned Public Prosecutor has vehemently opposed the submissions advanced by the appellant. However, she too is not in position to deny that FIR came to be lodged after significant delay.
It is also not disputed that no indecent pictures etc. of the victim were recovered during investigation.
There is merit in the argument of learned counsel for the appellant that the record pertaining to initial admission of the victim in the school was not proved by the prosecution. Whatever documents have been proved (Ex.P14, 15 and 16) pertain to the higher classes in which the girl was admitted. The Ration Card Ex.D2 which was proved by the defence indicates that the date of birth of the victim was 31.08.1994 and with that reference, the girl was definitely major as on the date of incident. The discrepancy in age is also reflected from a comparative analysis of the ages of the victims siblings. It is clear from the statement of the victim that the sexual relations between her and accused- appellant continued over a significant period of time without her reporting the matter to anyone. Thus, the theory of consent cannot be outrightly discarded.
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(4 of 5) [SOSA-641/2021] Upon a consideration of the arguments advanced on behalf of the appellant and the learned Public Prosecutor and having regard to the facts and circumstances of the case, this Court is of the opinion that it is a fit case for suspending the sentences awarded to the accused appellant.
Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012, Jaipur District vide judgment dated 20.4.2019 in Sessions Case No.99/2017 ( 308/14) against the appellant-applicant Mahesh Kumar S/o Sh. Lala Ram, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.40,000/- with two sureties of Rs.20,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 20.09.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.
3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.
The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this (Downloaded on 17/08/2021 at 10:17:00 PM) (5 of 5) [SOSA-641/2021] order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
Sandeep Rawat/14
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