Rajasthan High Court
Mudam @ Shakir Mudam S/O Abdul Rahim @ ... vs State Of Rajasthan (2024:Rj-Jp:37224) on 4 September, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:37224]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 14/2024
In S.B. Criminal Appeal No. 35/2024
Mudam @ Shakir Mudam S/o Abdul Rahim @ Abdul Karim, R/o
Village Roteda, P.s. Kapren, Dist. Bundi. (Presently Confined At
Central Jail Bundi)
----Petitioner
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent For Petitioner(s) : Mr. Amit Dadhich For Respondent(s) : Mr. Amit Punia HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 04/09/2024
1. Heard learned counsel for the applicant-appellant and learned State counsel on the application for suspension of execution of sentence.
2. The applicant-appellant herein h as been convicted for the offences punishable under Sections 363 & 366 of IPC and Section 3/4 (1) of Protection of Children from Sexual Offence Act, 2012 vide judgment dated 14.12.2023 passed by learned Special Judge, Protection of Children from Sexual Offences Act, 2012 & Child Right Protection Commission Act, 2005, No.1, Bundi in Sessions Case No. 90/2022 and has been sentenced to maximum punishment of ten years.
3. Learned counsel for the appellant-applicant submits that appellant-applicant has wrongly been convicted by the learned trial Court. Counsel submits that learned trial Court has failed to appreciate the evidence available on record in correct perspective. (Downloaded on 27/09/2024 at 10:50:32 PM) [2024:RJ-JP:37224] (2 of 4) [SOSA-14/2024] Counsel submits that learned trial Court committed error in convicting the appellant solely on the basis of the fact that prosecutrix was below 18 years at the time of alleged incident. Counsel submits that it is apparent from the record that prosecutrix who was at the verge of majority (17 years 6 months) at the time of alleged incident, was in a affair with the appellant who was 24 years old at the time of alleged incident. Counsel submits that according to the prosecution case, appellant has taken away the prosecutrix on motorcycle and thereafter she was raped by the appellant. Counsel submits that it has been admitted by the prosecutrix that one mobile phone was given to her by the appellant-applicant forcefully and it is also appears from the record that she changed the story in her Court testimony. Counsel submits that it has been alleged that appellant-applicant has taken her away by administrating some drug at motorcycle. Counsel submits that it has been observed by the learned trial Court that prosecutrix was a consenting party and relations between appellant and prosecutrix was consensual in nature. Counsel submits that it is apparent from the record that prosecutrix never disclosed her actual age to the appellant-applicant and always presented herself as major. Counsel submits that school certificate is not a conclusive proof regarding age of the prosecutrix and other circumstances are also required to be taken into consideration. Counsel further submits that during trial, appellant-applicant was on bail and till date appellant has suffered almost one year of incarceration and there is no immediate prospect of this appeal being heard and disposed of in near future. (Downloaded on 27/09/2024 at 10:50:32 PM) [2024:RJ-JP:37224] (3 of 4) [SOSA-14/2024]
4. Learned State counsel opposes the submissions made by counsel for the appellant. He submits that there is specific allegation of commission of rape against the appellant. He submits that despite information, no one has put in appearance on behalf of victim/complainant.
5. Upon a consideration of the arguments advanced on behalf of the appellant as well as learned State Counsel and having regard to the facts and circumstances as available on the record and especially the fact that at the time of alleged incident, prosecutrix was at the verge of majority and she left her parental home on her own and also considering the fact that a mobile phone was also given by the appellant to the prosecutrix; during trial appellant was on bail and there is no immediate prospect of of this appeal being heard and disposed of in near future, this Court is of the opinion that the appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the applicant-appellant during pendency of the instant appeal.
6. 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 & Child Right Protection Commission Act, 2005, No.1, Bundi (Raj.) vide judgment dated 14.12.2023 in Sessions Case No. 90/2022 against the appellant- applicant Mudam @ Shakir Mudam S/o Abdul Rahim @ Abdul Karim shall remain suspended till final disposal of the aforesaid (Downloaded on 27/09/2024 at 10:50:32 PM) [2024:RJ-JP:37224] (4 of 4) [SOSA-14/2024] appeal and he shall be released on bail, provided he execute 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 09.10.2024 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.
7. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-
applicant was 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 applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(ANIL KUMAR UPMAN),J LALIT MOHAN /96 (Downloaded on 27/09/2024 at 10:50:32 PM) Powered by TCPDF (www.tcpdf.org)