Rakesh Kumar S/O Shri Makkhan Lal vs State Of Rajasthan
2021 Latest Caselaw 3808 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

     D.B. Criminal Misc. Suspension of Sentence Application
                                 No.1288/2020

                                          in

                D.B. Criminal Appeal No. 208/2020

Rakesh Kumar S/o Shri Makkhan Lal, Aged About 22 Years, R/o
Shivsinghpura Police Station Amarsar Distt. Jaipur At Present In
Central Jail Jaipur.
                                                                         ----Appellant
                                      Versus
State Of Rajasthan, Through P.P.
                                                                       ----Respondent

For Appellant(s) : Mr. Harendra Singh Sinsinwar For Respondent(s) : Ms. Alka Bhatnagar, AGA Mr. Dipendra Choudhary, on behalf of Mr. Rajesh Kumar Sharma

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

17/08/2021

The instant application for suspension of sentence

under Section 389 CrPC is preferred on behalf of the appellant-

applicant Rakesh Kumar S/o Makkhan Lal, who has been convicted

and sentenced to for the offences under Sections 363, 366,

376(2)(N) IPC and Section 5(J)(ii) read with Section 6 of the

POCSO Act vide the judgment dated 30.07.2020 passed by

learned learned Judge, Special Court, POCSO Act Cases, Jaipur

District in Sessions Case No.14/2019.

Learned Public Prosecutor has filed reply to the

application for suspension of sentences.

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Heard learned counsel for the appellant, learned Public

Prosecutor and learned counsel for the complainant and perused

the material available on record.

Learned counsel Mr. Harendra Singh Sinsinwar,

representing the appellant-applicant, vehemently and fervently

contended that the entire prosecution case is false and fabricated.

The victim Mst. 'M' was definitely a major girl on the date of the

incident. She voluntarily eloped with the appellant and travelled

together with him and sexual relations were established between

the appellant and the victim with consent. He points out that the

incident took place in the month of December 2018. The

prosecution has placed reliance on the school documents Ex.P/19

to Ex.P/22-A in order to portray that the date of birth of the victim

is 13.06.2001, but as a matter of fact, these documents do not

faithfully reflect the correct date of birth of the girl. He submitted

that in these documents and the evidence of the material

prosecution witnesses, it was portrayed that the victim was

straight-off admitted in the 5th Standard of Gurukul Vidhya

Ashram, Kariri, Shahpura and hence, the documents pertaining to

her admission in this school should be considered conclusive for

determining age of he girl. Mr. Sinsinwar drew the court's

attention to the statements of Shankar Lal (P.W.2), father of the

girl, and Sajana Devi (P.W.11), mother of the girl, and pointed out

that both these witnesses admitted that the girl was earlier

admitted in the Government Upper Primary School, Tanglyawali

(Kariri), Panchayat Samiti Shahpura. He urged that the

documents Ex.D/4, Ex.D/5, Ex.D/6 (Scholar Register), Ex.D/7

(Admission Register), Ex.D/8 and Ex.D/9 clearly establish that the

victim Mst. 'M' was admitted in the Government Upper Primary

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School Tangyawali (Kariri) in the year 2004 and in these

documents, her date of birth is recorded as 07.07.1999. He

further drew the court's attention to the birth certificate (Ex.D/5

and Ex.D/12) issued by the Registrar of Birth and Death, Gram

Panchayat Kariri in the year 2007, wherein also the date of birth of

the victim is recorded as 07.07.1999. He urged that the affidavit,

which the complainant Shankar Lal filed while getting the girl

admitted in the 5th Standard is false because in this document, for

the first time, the date of birth of the girl was portrayed to be

13.06.2006. The deponent mentioned that his daughter had

never studied earlier. Mr. Sinsinwar submitted that Shankar Lal

(P.W.2) and Sajana Devi (P.W.11) admitted in their cross-

examination that their daughter had stayed in the Tangyawali

(Kariri) School at an earlier occasion. He also drew the court's

attention to the letter (Ex.D/2) written by the victim before

leaving her father' house and contended that a clear case of

elopement and consensual sexual relationship has been given the

twist of kidnapping and rape of a minor girl on the basis of

fabricated evidence. He, thus, urges that the conviction of the

appellant as recorded by the trial court is absolutely illegal. The

appellant is in custody since December 2018. On these grounds,

learned counsel for the appellant-applicant implored the court to

accept the application for suspension of sentences and direct

release of the appellant on bail during pendency of the appeal.

Per contra, learned Public Prosecutor and the learned

counsel representing the complainant vehemently and fervently

opposed the submissions advanced by Mr. Sinsinwar and urged

that as per the Secondary School Marksheet (Ex.P/10-A), which

has been relied upon by the rial court, the date of birth of the girl

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is 13.06.2001 and thus, she was definitely minor on the date of

the incident and thus, her consent would be immaterial for sexual

relations. They, thus, submitted that the appellant does not

deserve indulgence of bail because there is distinct allegation of

the victim regarding the appellant having kidnapped her and

subjecting her to forcible sexual assault.

We have given our thoughtful consideration to the

submissions advanced by the learned counsel for the parties and

gone through the material available on record. The fact that the

victim eloped with the appellant is apparent from the contents of

the FIR (Ex.P/11) as well as the 164 CrPC statement of the victim

(Ex.P/10). Thus, the only issue which remains for consideration of

this court is whether the date of birth of the girl as recorded in the

Secondary School Certificate (Ex.P/10-A) should be given primacy

over the contemporaneous school record, which has been proved

by the defence. The complainant Shankar Lal, father of the girl,

and Smt. Sajana Devi, mother of the girl, admitted in their

evidence that in initial stages, the victim was got admitted in the

Government Upper Primary School, Tangyawali (Kariri). For

proving that the date of birth of the girl was 13.06.2001, the

prosecution tried to portray that the girl was for the first time

admitted in a school in the 5 th Standard. Ex facie the said

assertion appears to be totally dubious. In contravention to the

above, the defence has proved the contemporaneous school

record procured from the Government Upper Primary School,

Tangyawali, where the girl admittedly was admitted initially. As

per the scholar register (Ex.D/6), the girl was admitted in the first

standard of the said school on 01.07.2004. Her date of birth in

this document is recorded as 07.07.1999. She continued to study

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in the second, third and fourth standards in the same school,

whereafter, it appears that she was got transferred for being

admitted elsewhere. While getting the girl admitted in the 5 th

Standard of Gurukul Vidhya Ashram Kariri, Shahpura, the girl's

father filed an affidavit (ExD/14-A), wherein the date of birth of

the girl is recorded as 13.06.2001 and a note is appended that his

daughter had never studied in any other school previously. This

affidavit is apparently false in the face of the documents referred

to supra. Thus, we are of the view that the appellant has made

out a strong case to satisfy the court that the date of birth of the

victim recorded in the Secondary School Marksheet (Ex.P/10-A)

cannot be accepted as being unimpeachable. As per the

documents proved by defence, the girl was major on the date of

the incident. The fact regarding elopement of the girl with the

appellant is virtually admitted. In this background, clearly the

appellant has strong and plausible grounds available to him for

assailing the impugned judgment. Hearing of the appeal is likely

to consume time.

In this background 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 during the pendency of the appeal.

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 Judge, Special Court, POCSO Act

Cases, Jaipur District vide judgment dated 30.07.2020 in Sessions

Case No.14/2019 against the appellant-applicant Rakesh Kumar

S/o Makkhan Lal, shall remain suspended till final disposal of the

aforesaid appeal and he shall be released on bail, provided he

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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 17.09.2021 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.

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.

                                   (RAMESHWAR VYAS),J                                         (SANDEEP MEHTA),J

                                   Pramod/7









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