Mahesh Kumar Son Of Shri Lalaram vs State Of Rajasthan
2021 Latest Caselaw 3749 Raj/2

                                           (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

(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.

(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.

(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

(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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