HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc. Suspension of Sentence Application No.
1341/2022
In
S.B. Criminal Appeal No. 2059/2022
Sajjad @ Kalu @ Sajid S/o Shri Asgar Ali, Aged About 35 Years,
R/o Ward No. 22, House No. 237, Near Rahmaniya Masjid Adarsh
Nagar, Gudha Mod, Railway Phatak, Jhunjhunu Police Station
Kotwali District Jhunjhunu Presently Tenant Of Asraf Bhai Ka
Makan, Anand Colony, Manbagh, Police Station Brahmpuri Jaipur
(Presently Confined In Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Ms. Anushree Sharma
For Respondent(s) : Mr. S.S. Mahla, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
02/01/2023
Heard learned counsel for the accused appellant and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dated 06.10.2022 passed by learned Special Judge, POCSO Act, 2012, No.2, Jaipur whereby the accused appellant has been convicted for the offence punishable under sections 376 IPC and has been sentenced to maximum ten years imprisonment along with fine of Rs. 50,000/-.
Learned counsel for the accused-appellants submits that the appellant has falsely been implicated in this matter with oblique motive, the allegations levelled by the prosecutrix is not at all (Downloaded on 09/01/2023 at 11:37:54 PM) (2 of 4) [SOSA-1341/2022] believable rather the same seems to be flimsy. The manner in which the incident said to have taken place does not inspire confidence. The prosecutrix is a married and grown up lady aged about 23 years having two children. It is reflecting from the FIR itself that she joined the company of the appellant at her own free will and volition without there being any compulsion. As per the allegations, she was subjected to rape at Jaipur in March, 2018 but the report to this regard came to be lodged on 07.06.2019, however, no explanation whatsoever has been furnished in this regard and nothing satisfactory has been explained as to why she had kept mum for a long. The allegations of making video clip has been belied in the light of the fact that nothing incriminating was recovered at the instance of the appellant. There is major discrepancy in the story stated out in the FIR and what has alleged in the trial. The matter was investigated by a senior Police Officer in which after investigation it was observed that the allegations against the other persons were not true and therefore charge-sheet came to be filed only against the accused appellant. In this view of the matter, learned counsel submits that to a large extent, the prosecutrix has been found to be a liar therefore basing conviction on her tainted evidence would not be safe. Learned counsel drew attention of this Court towards report under Section 173 Cr.P.C. wherein the Investigating Officer has observed that the complainant failed to show the hotel where she was taken and the place where she was subjected to rape. In light of above, learned counsel submits that the prosecution has miserably failed to prove the accusation against the appellant, therefore, pending appeal his incarceration would not be justifiable. (Downloaded on 09/01/2023 at 11:37:54 PM)
(3 of 4) [SOSA-1341/2022] Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant.
The accused-appellant is behind the bars and the hearing of appeal is likely to take further more time, therefore, considering the overall submissions and looking to the totality of facts and circumstances of the case while refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion that it is a fit case for suspending the sentence 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, POCSO Act, 2012, No.2, Jaipur, vide judgment dated 06.10.2022 in Sessions Case No. 51/2020 against the appellant-applicant Sajjad @ Kalu @ Sajid S/o Shri Asgar Ali 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.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance in this court on 07.02.2023 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.
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(4 of 4) [SOSA-1341/2022]
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-applicants were tried and convicted. A copy of this 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 applicants does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(FARJAND ALI),J PREETI VALECHA /47 (Downloaded on 09/01/2023 at 11:37:54 PM) Powered by TCPDF (www.tcpdf.org)