Rajasthan High Court
Banwari S/O Shri Ram Prasad vs State Of Rajasthan on 15 December, 2021
Bench: Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc. (SOS) Application No.1181/2021
In
S.B. Criminal Appeal No. 1659/2021
Banwari S/o Shri Ram Prasad, Aged About 26 Years, Resident Of
Badh Salempur, Police Station, Kudgaon, District Karauli
(Rajasthan) (Presently Confined In Central Jail, Sevar, District
Bharatpur)
----Appellant
Versus
State Of Rajasthan, Through PP
----Respondent
For Appellant(s) : Mr. Rahul Sharma for
Mr. Rajneesh Gupta
For Respondent(s) : Mr. Imran Khan, PP
HON'BLE MR. JUSTICE MANOJ KUMAR VYAS
Order
15/12/2021
Heard on application for suspension of sentence.
The appellant has filed the appeal along with
application for suspension of sentence.
The appeal has been preferred against the judgment of
conviction and sentence dated 29.09.2021 passed by the Court of
Special Judge, Protection of Children from Sexual Offences Act,
2012 and Commission for Protection of Child Rights Act, 2005
Karauli (Rajasthan) in Session Case No.24/2020 (CIS
No.24/2020), by which the appellant has been convicted for
offence under Section 376 (A)(B) of IPC read with Section 5/6 of
the POCSO Act and sentenced to maximum term of twenty years.
(2 of 3) [SOSA-1181/2021]
It has been submitted by learned counsel for the
appellant that the appellant has been falsely implicated in this
case. During trial, the prosecutrix (PW-1) has turned hostile. She
has not supported the prosecution case. In her statement, she has
not levelled any allegation against the appellant. She has stated
that nothing happened with her. The mother of the prosecutrix
(PW-2) in her statement has stated that the appellant beat her
daughter but, apart from this, nothing was done by the present
appellant. She has been declared hostile. PW-3, who is relative of
the prosecutrix has also turned hostile and has not supported the
prosecution version. She also stated that the FIR was lodged as
the appellant beat the prosecutrix. There is not sufficient evidence
on record to prove that the samples which was sent for DNA test
was seized as per the Rules. Medical evidence (statement of PW-
4-Dr. Anita Gupta) also does not support the prosecution version.
In her cross-examination, she has stated that at the time of
medical examination, there was no signs of any sexual violence
against the prosecutrix.
Learned trial court has erred in convicting and
sentencing the appellant on the basis of hostiled witnesses. The
DNA report alone cannot be made basis for conviction of the
appellant. It can only be relied as corroborative evidence but there
is no corroboration of the DNA report. All the important witnesses
of prosecution have stated that the appellant did not commit any
offence. During trial, the appellant was on bail. Hearing of the
appeal may take long time. There is no criminal antecedents of
the appellant. Learned counsel has relied upon the judgment of
(3 of 3) [SOSA-1181/2021]
Gujrat High Court in the case of Premjibhai Bachubhai Khasiya Vs.
State of Gujarat & Ors., 2009 CriLJ 2888.
Heard learned counsel for the parties and scanned the
evidence available on record carefully.
Learned Public Prosecutor has opposed the application
for suspension of sentence.
Taking into consideration the submissions of learned
counsel for the appellant, evidence available on record and overall
facts and circumstances of the case but without commenting upon
detailed merits of the case, this Court deems it just and proper to
allow the application for suspension of sentence.
Accordingly, the application for suspension of sentence
is allowed and it is ordered that the sentence awarded to accused-
appellant Banwari S/o Shri Ram Prasad shall remain
suspended till disposal of this criminal appeal and he shall be
released on bail, provided the appellant furnishes a personal bond
of Rs.1,00,000/- (One Lakh) and two sureties of Rs.50,000/- (Fifty
Thousand) each to the satisfaction of the learned trial court for his
appearance in this Court on 17th January, 2022 and as and when
called upon to do so.
(MANOJ KUMAR VYAS),J
Sunita/88
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