HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Suspension of Sentence Application
No. 1261/2021
In
S.B. Criminal Appeal No. 2025/2021
Radhakishan @ Babu Bhai S/o Late Shri Mohandas, Aged About
51 Years, R/o Tenant Of Mohansingh, Shanti, Nagar, Sukhadiya
Nagar, Clock Tower, Ajmer (Raj) (At Present Confined In Central
Jail Ajmer)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Mr. V.P. Yadav
For Respondent(s) : Mr. Rajendra Yadav, Ga-cum-AAG
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 02.12.2021 passed by learned Special Judge, POCSO, 2012 and commission for Protection of Child Rights Act, 2005 whereby the accused appellant has been convicted for the offence punishable under Sections 5(L)(m)/6 POCSO Act and has been sentenced to maximum twenty years rigorous imprisonment along with fine of Rs.50,000/- as well as for the offence punishable under Section 342 IPC and has been sentenced to one year simple imprisonment with fine of Rs.1,000/-.
Learned counsel for the appellant submits that appellant has not committed any offence and he has falsely been implicated in (Downloaded on 04/01/2023 at 09:01:50 PM) (2 of 4) [SOSA-1261/2021] this matter grudge-fully just with a view to wreak vengeance upon him. There is an inordinate delay in lodging the FIR for which no satisfactory explanation has been furnished. The matter came to be reported on 23.11.2020. When the first incident of sodomy took place, it is not known to the complainant and the last incident is said to have been committed on 05.10.2020, thus, there was a delay of more than one and a half month in lodging of FIR which created a serious doubt over the genuineness and truthfulness of the allegations levelled. He further submits that there was a dispute in between the parties in respect of liquidation of certain amount. It is further submitted that the endeavor made by the prosecution to connect him with the FSL report itself is sufficient to show that the things have been done with an ulterior object to foist a case against the appellant. It is submitted that the presence of human semen in the anus has been noted by the Medical Officer on 24.11.2020 and the last alleged date of sodomy was 05.10.2020 and thus, he submits that even in the wildest of imagination, the presence of semen in anus cannot persist after 45 days since as per the maximum reported time period at which semen persists that is 7 days in vagina, 1 day in mouth and 2-3 days in anus/rectum. Generally, semen can persist for the above maximum period but here in this case, swab was taken after one and a half month which indicates clear malafide. Learned trial Court has not appreciated the correct legal and factual aspect of the matter. The entire evidence is required to be appreciated afresh. The hearing of appeal would take time.
Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant. (Downloaded on 04/01/2023 at 09:01:50 PM)
(3 of 4) [SOSA-1261/2021] The appellant was on bail during trial and has never misused the liberty granted to him 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, vide judgment dated 02.12.2021 in Sessions Case No.01/2021 against the appellant-applicant Radhakishan @ Babu Bhai S/o Late Shri Mohandas 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 his appearance in this court on 02.02.2023 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-1261/2021]
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 /08 (Downloaded on 04/01/2023 at 09:01:50 PM) Powered by TCPDF (www.tcpdf.org)