Rajesh Kumar vs State Of Rajasthan
2022 Latest Caselaw 3528 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 679/2021

Rajesh Kumar S/o Sh. Harchand, Aged About 45 Years, R/o Ward No. 19, Tehsil Khajuwala, Dist. Bikaner (Raj.). (Presently Lodged At Central Jail, Bikaner).

                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through PP
                                                                ----Respondent


For Petitioner(s)        :     Mr. Mahaveer Bishnoi.
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC.
                               Mr. Pradeep Choudhary.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
            HON'BLE MS. JUSTICE REKHA BORANA

                                    Order

08/03/2022

The appellant herein has been convicted and sentenced as

below vide judgment dated 15.02.2020 passed by the learned

Special Judge, Protection of Children from Sexual Officens

(POCSO) Act, 2012 and the Commission for Protection of Child

Rights Act, 2005, Bikaner in C.I.S. Case No.41/2018:

Offences            Sentences                     Fine
Section 302 IPC     Life Imprisonment.            Rs.20,000/- in default of
                                                  which to further undergo
                                                  1 Year's additional R.I.

Section 306 IPC     10 Years' R.I.                Rs.10,000/- in default of
                                                  which to further undergo
                                                  6 Months' Additional R.I.

Section 5/6     of 14 Years' R.I.                 Rs.10,000/- in default of
POCSO Act.                                        which to further undergo
                                                  1 Year's Additional R.I.



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He has preferred the Appeal No.106/2020 for challenging his

conviction as recorded by the trial court. The instant application

for suspension of sentences has been moved on behalf of the

appellant under Section 389 Cr.P.C. with a prayer to release him

on bail, during pendency of the appeal.

Learned Public Prosecutor has filed reply to the application

for suspension of sentences as per which, the appellant has

suffered actual imprisonment of 8 years 9 months and 6 days as

on 08.11.2021 and thus, by now, the custodial period of the

appellant has crossed the threshold of 9 years.

Brief facts relevant and essential for disposal of the

application for suspension of sentence are noted herein below:

An FIR (Ex.P/14) came to be filed at Police Station Khajuwala

on 26.04.2013 with allegations that the victim and the minor son

of the complainant Master 'O' both used to study in 8 th Standard in

J.R. Dhagar English Medium School, 25 K.Y.D. The complainant

was informed by his son Master 'O' that Rajesh Dhagar took him

(Master 'O'), the victim and one another girl 'S' to the school on

05.04.2013. Both the girls were taken to the room behind 8 th

Standard classroom and there, Rajesh indulged in intercourse with

them. Master 'O' allegedly saw this act and further informed the

complainant that Rajesh Teacher often took the two girls to the

school in his jeep and would subject them to intercourse. He

would then threaten the boy and the girls of dire consequences if

they spoke out regarding these acts. In this sequence, Rajesh took

the victim, Master 'O' and Mst. 'S' to the school on 11.04.2013

even though it was a holiday. There, both the girls were subjected

to sexual assault behind the 8th Standard classroom. Master 'O'

was given a motorcycle and a sum of Rs.1,000/- and was sent to

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Khajuwala Mandi for fetching apples and bananas. On returning,

Master 'O' saw the accused subjecting the victim and the other girl

to rape one after the other. At this point of time, Master 'O' told

the accused that he would divulge these incidents to his father on

which, he was threatened of dire consequences. The victim started

feeling nauseous and was weeping. At that time, Rajesh took

Master 'O', the victim and the girl 'S' to the Khajuwala Hospital.

The informant's brother-in-law Shri Kaluram (PW-6) also reached

the hospital where, Master 'O' and the victim allegedly shared the

gory details of the incident with him. They also told that the

accused had given some poisonous tablet to the victim and she

was hyperventilating. Mst. 'K' expired on which, her body was

subjected to postmortem and was cremated by her family

members. It was also alleged that Mst. 'S' also passed away on

the same day and thus, her body was also cremated by her family

members.

On the basis of this report, an FIR No.81/2013 (Ex.P/14) was

registered at the Police Station Khajuwala for the offences

punishable under Sections 376, 306 and 302 of the IPC and

Section 6 of the POCSO Act and investigation was commenced. At

the conclusion of the trial, the trial court, proceeded to convict and

sentence the accused appellant as above.

Shri Mahaveer Bishnoi, learned counsel representing the

appellant, vehemently and fervently contended that the entire

case set out by the prosecution that the appellant subjected the

minor victim 'K' to sexual assault and thereafter, gave her poison

mixed water to consume as a result whereof, the child died, is

absolutely false and fabricated. He drew the Court's attention to

the report (Ex.D/1) submitted by Shri Bhagirath father of the girl

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to the SHO, Police Station Khajuwala on 11.04.2013 wherein, it

was stated that his daughter Mst. 'K' (hereinafter referred to as

'the victim') aged 15 years, used to study under the appellant.

She was ailing for the last three months with swelling in abdomen

and fever and was being provided treatment at Gharsana. The

child had gone to the school in the morning at about 9 O' Clock.

Between 09.30 to 10.00 AM., Rajesh called and informed the

complainant that his daughter had suffered drug reaction. On this,

the complainant sent Raju to the hospital where she had been

taken by the appellant. Treatment was being provided to the child.

She was referred to the P.B.M. Hospital for further management

but expired during treatment. On this report, proceedings under

Section 174 Cr.P.C. were undertaken. The statement of Shri

Bhagirath was recorded during the course of enquiry of the

inquest proceedings as Ex.D/2 wherein, he reiterated the contents

of the report (Ex.D/1). Shri Mahaveer Bishnoi vehemently

submitted that the gross delay of almost 15 days in lodging the

FIR and the apparent exaggerations made therein, completely

discredit the prosecution case. The theory put-forth in the FIR and

in the statement of the witness Master 'O' regarding he having

seen the appellant sexually assaulting the two girls on

05.04.2013, 11.04.2013 and on earlier occasions, is totally

concocted and cooked up. There was no reason as to why the

victim herself or the witness Master 'O', did not divulge these facts

to the first informant or other family members even though there

was ample opportunity for them to have done so. He further

pointed out that when the witness Master 'O' was examined on

oath, he categorically stated that as soon as had he and the victim

had been brought to the hospital, his maternal uncle came there

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and asked the victim as to what had happened to her on which,

she divulged that she had consumed a poisonous tablet and that

the accused had subjected her to sexual assault. Shri Bishnoi

submitted that this being the situation, there was no reason as to

why the police officer, even though present at the spot, was not

immediately informed of the alleged act of sexual assault with the

victim. He further submitted that the witness Kaluram (PW-6),

maternal uncle of the victim, admitted that he was told by the girl

on 11.04.2013 itself that she had been subjected to sexual assault

by the appellant and then, she was given poison mixed in water.

However, the witness made no attempt to report this serious

incident to the police officer Vishnu Bhagwan who was present at

the hospital. Shri Bishnoi also drew the Court's attention to the

fact that Shri Vishnu Bhagwan, ASI was the first police officer who

interacted with the first informant Shri Bhagirath and received the

report (Ex.D/1). However, the prosecution intentionally withheld

the said witness and did not examine him in evidence. As the

presence of a police officer at the hospital where the victim was

brought on 11.04.2013, is an admitted position, there was no

reason as to why the first informant Shri Bhagirath or his brother-

in-law Shri Kaluram (PW-6) did not inform the police officer

regarding the criminal acts allegedly committed by the accused

appellant upon the victim. He thus urged that the prosecution

case suffers from blatant falsities, exaggeration and serious

lacunas. The appellant, who has suffered incarceration for a period

in excess of 9 years, has available to him, strong and plausible

grounds for assailing the impugned Judgment. Hearing of the

appeal is unlikely in the near future. On these grounds, Shri

Bishnoi implored the Court to accept the application for

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suspension of sentences and direct release of the appellant on

bail, during pendency of the appeal.

Per contra, learned Public Prosecutor and Shri Pradeep

Choudhary, learned counsel representing the complainant,

vehemently and fervently opposed the submissions advanced by

the appellant's counsel. They urged that the prosecution case is

well established on the basis of direct evidence of Master 'O' and

the testimony of Shri Kaluram (PW-6) who has given evidence of

oral dying declaration made by the victim Mst. 'K'. They further

pointed out that when the clothes of the victim and the accused

were tested at the FSL, they gave positive result for presence of

semen and hence, the allegation of rape is well established against

the appellant. They thus implored the Court to dismiss the

application for suspension of sentences.

We have given our thoughtful consideration to the

submissions advanced at bar and, have gone through the material

available on record.

Immediately after the incident, the first informant Bhagirath

submitted the report (Ex.D/1) wherein, there is no allegation that

the victim had been subjected to rape by the accused and that he

administered the poisonous substance to her. There is no doubt

that there is a gross delay of 15 days in lodging of the FIR

(Ex.P/14). The prosecution has tried to explain the delay saying

that Bhagirath was deeply perturbed owing to death of his minor

daughter and thus, he could not lodge the report to the police.

However, the fact remains that Kaluram (PW-6) before whom the

victim allegedly made an oral dying declaration, was present in

the hospital on 11.04.2013. The police officer Vishnu Bhagwan

was also present in the mortuary at Bikaner but the witness did

(7 of 8) [SOSA-679/2021]

not divulge anything about the incident to the police officer. He

admitted in cross-examination that he could not explain as to why

he did not tell the police of these serious incidents of rape and

poisoning of his minor niece despite available opportunity. These

omissions are quite serious. However, the implication thereof

would have to be examined by this Court when the appeal is being

finally heard. The prosecution has placed heavy reliance on the

FSL report (Ex.P/22) as per which, human semen was detected on

the underwear of the accused and the Salwar of the victim.

However, the victim's Salwar was handed over to the police

officials as late as on 29.04.2013 whereas the underwear of the

accused was seized on 27.04.2013. Thus, there is a significant gap

between the alleged incident and the seizure of the garments.

In view of the facts noted herein above and, considering the

circumstance that the accused has already remained behind bars

for a prolonged period of more than 9 years and, since there is no

prospect of early hearing of the appeal, but without making any

comment on the merits of the case, we are inclined to enlarge the

appellant on bail while suspending the sentences awarded to him

by the trial court, during pendency of the appeal.

Accordingly, the instant application for suspension of

sentences filed under Section 389 Cr.P.C. is allowed and it is

ordered that the sentences passed by the Special Judge,

Protection of Children from Sexual Officens (POCSO) Act, 2012

and the Commission for Protection of Child Rights Act, 2005, vide

judgment dated 15.02.2020 in C.I.S. Case No.41/2018 against the

appellant-applicant Rajesh Kumar, 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

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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 11.04.2022 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

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.

                                   (REKHA BORANA),J                                         (SANDEEP MEHTA),J


                                    48-/Tikam/ Divya/-









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