Rajasthan High Court - Jodhpur
Jagdish vs State Of Rajasthan (2024:Rj-Jd:41428) on 9 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:41428]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. IInd Suspension Of Sentence Application
(Appeal) No. 1076/2024
Jagdish S/o Sh. Moola Ram, Aged About 44 Years, R/o Kasai
Mohalla, Marwar Junction, P.S. And Teh. Marwar, Dist. Pali (Raj.).
(Presently Lodged In Central Jail, Jodhpur).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Ms. Komal R. Verma
For Respondent(s) : Mr. Rajesh Bhati, AGA
Mr. Ravindra Singh Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 09/10/2024
1. The first application for suspension of sentence came to be dismissed by this Court one and half year ago and still whereafter the appeal could not be reached for hearing on merits. Hence, this second application for suspension of sentence is moved on behalf of the appellant.
2. The second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 31.03.2022 passed by learned Special Judge (POCSO Act Cases) No.2, Pali in Sessions Case No.267/2018 whereby he was convicted and sentenced to suffer maximum punishment of 20 years rigorous imprisonment along with compensation fine of Rs.1,00,000/- under Section 376(2)(1) of the IPC.
3. It is contended that the learned trial Judge has not appreciated the correct, legal and factual aspects of the (Downloaded on 10/10/2024 at 09:47:36 PM) [2024:RJ-JD:41428] (2 of 4) [SOSA-1076/2024] matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.
4. Per contra, learned Additional Government Advocate has vehemently opposed the prayer made by learned counsel for the accused-applicant for releasing the appellant on application for suspension of sentence.
5. Heard learned counsel Ms. Komal R. Verma and the learned Public Prosecutor and gone through the record of the case.
6. This Court is of the view that every accused has a right to assail the finding of conviction and order of sentence by way of filing an appeal before higher Court and by virtue of the provision contained under Section 386 of the CrPC, this Court is authorized to make further appreciation of evidence so as to examine the sustainability of the judgment of conviction. The appeal had been admitted by this Court way back and since long the same is not coming on the board for hearing on merits. The petitioner is behind the bars since 03.02.2018 and a period of six and half years has elapsed incarcerating the appellant and in near future, there seems no hope of hearing of the appeal on merits due to voluminous pendency before this Court. In the circumstances above, this Court persuaded to examine the matter cursorily so as to make justifiable disposal of the application for suspension of sentence.
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7. I have minutely gone through the statement of the victim (P.W.19), her parents and the Medical Officer, who examined the victim on the very same day and prepared the report (Ex.P/20). A perusal of the report (Ex.P/20) revealing that the hymen of the victim was found intact. The vulva, pudendum, labia majora and labia minora and all parts were not found with any injury. It is specifically mentioned in the report that no external physical injury was seen on the body of the victim. Taking together the statement of the victim, it comes to fore that she has levelled allegation of forceful penetration and at this juncture the statement seems to be scrutinized cautiously. Another thing which comes on record is the weak mental condition of the victim. The possibility as argued by the learned counsel for the appellant that she was prompted or tutored cannot be ruled out at this stage when the final adjudication is to be made by this Court upon hearing the appeal on merits.
8. Another glaring aspect of the case would be that the prosecution has projected the story that the girl was below the age of 18 years and thus, the charge under the penal provisions of POCSO Act was inflicted. However, after conducting a meticulous appreciation of evidence, the learned trial Court exonerated the accused appellant from the charge under Section 5/6 of the POCSO Act. The age of the victim is also a question to be assessed by this Court again. Thus, looking to the long incarceration; the submission that the appellant has a strong arguable case in his favour and the arguments raised on his behalf, if (Downloaded on 10/10/2024 at 09:47:36 PM) [2024:RJ-JD:41428] (4 of 4) [SOSA-1076/2024] accepted by this Court, then he may get acquittal in the appeal, this Court feels it appropriate at this stage to extend the benefit of bail to him.
9. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by learned Special Judge (POCSO Act Cases) No.2, Pali in Sessions Case No.267/2018 against the appellant-applicant Jagdish S/o Sh. Moola 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.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 11.11.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicant changes the place of residence, he will give in writing his 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.
(FARJAND ALI),J 78-Ashutosh/-
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