Bashir Khan vs State Of Rajasthan ...
2023 Latest Caselaw 3464 Raj

[2023/RJJD/011652]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 292/2023 Bashir Khan S/o Jameshar Khan, Aged About 21 Years, Bhu, Jaisalmer Sadar P.s., Jaisalmer Dist. Jaisalmer (Confined In Central Jail, Jodhpur).

----Petitioner Versus State of Rajasthan, Through PP

----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 86/2023 Jetmal Khan S/o Lakhekhan, Aged About 28 Years, R/o Bhoo, Police Station Sadar, District Jaisalmer (Raj.) (Presently Lodged In District Jail, Jaisalmer)

----Petitioner Versus State of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. Kamal Singh Rathore Mr. Ashok Kumar Panwar Mr. Sukha Dev Mr. Harshwardhan Rathore For Respondent(s) : Mr. A.R. Choudhary, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

24/04/2023

1. The instant applications for suspension of sentence have

been moved on behalf of the applicants-appellant in the matter of

judgment of conviction dated 16.01.2023 and order of sentence

dated 17.01.2023 passed by learned Special Court - POCSO 2012

and Commissions for Protection of Child Rights Act 2005,

[2023/RJJD/011652] (2 of 5) [SOSA-292/2023]

Jaisalmer in Sessions Case No.10/2021 and whereby each of the

applicants-appellant was convicted and sentenced to suffer

maximum punishment of 20 years rigorous imprisonment along

with fine of Rs.20,000/- and in default of payment of fine to

undergo 3 months rigorous imprisonment under Section 5/6

POCSO Act, 2012 and lesser punishment for the offences under

Sections 363 & 366 of IPC.

2. Learned counsel for the applicants-appellant submits that as

per the prosecution story set out in the report lodged at the

instance of Thirth Ram, the father of the victim on 02.02.2021, it

were accused Afreed Khan, Nagor Khan, Bashir Khan, Ali Khan

and Sorab Khan who seduced his daughter in the intervening night

of 31.01.2021 and 01.02.2021, she was forcibly taken away by

them. It was specifically mentioned in the FIR that these accused

were regularly molesting her on account of threat of making her

obscene video viral. Pursuant to the FIR, when the victim was

examined under Section 161 Cr.P.C. on 03.02.2021, she alleged

that she had a friendly relationship with Bashir Khan and met with

him on 2-3 occasions and the accused subjected her to rape.

3. In her entire statement, no name of any other person,

including the persons named in the FIR was mentioned. When she

was examined under Section 164 of the Cr.P.C. on 06.02.2021 she

put forth an altogether different story, wherein, along with the

appellant Bashir Khan, name of other accused Sakur was also

mentioned but the manner of incident as alleged in the FIR lodged

by her father and in her own statement under Section 161 of

Cr.P.C. was entirely different. When her (P.W.8.) own oath

[2023/RJJD/011652] (3 of 5) [SOSA-292/2023]

statement were recorded during trial, she made material

improvement then what had been deposed earlier by her.

4. In this view of the matter, the submission made by learned

counsel for the appellant that since she was not firm on her stand

and discrepancies are appearing in her statement, therefore, she

cannot be taken as a reliable witness and therefore, basing

conviction on such tented evidence would not be safe; seems to

be worth considerable. Grounds regarding the sanctity of the birth

certificate have also been raised which would further be required

to be assessed by this court while hearing the appeal on merit

with a view to reach at a justifiable conclusion. Learned counsel

also submits that appellants were on bail during trial but never

misused the liberty and also submits that hearing of the appeals

would likely to take long time, therefore, the applications for

suspension of sentence may be granted.

5. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the learned counsel for the

applicants for suspending the sentence of the applicants-appellant.

6. Heard and perused the material available on record.

7. Upon consideration of the grounds raised in the memo of the

appeals, looking to the totality of facts and circumstances of the

case, more particularly the fact that the entire evidence is

required to be verified and assessed again by this Court and also

the fact that the hearing of appeals is likely to take further more

time and while refraining from passing any comments on the

niceties of the matter and the defects of the prosecution as the

same may put an adverse effect on hearing of the appeals, this

[2023/RJJD/011652] (4 of 5) [SOSA-292/2023]

court is of the opinion that it is a fit case for suspending the

sentence awarded to the applicants-appellant.

8. Accordingly, the present applications for suspension of

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

ordered that the sentences passed by learned Special Court -

POCSO 2012 and Commissions for Protection of Child Rights Act

2005, Jaisalmer vide judgment of conviction dated 16.01.2023

and order of sentence dated 17.01.2023 in Sessions Case

No.10/2021 against the appellants-applicant (1) Bashir Khan S/

o Jameshar Khan and (2) Jetmal Khan S/o Lakhekhan shall

remain suspended till final disposal of the aforesaid appeals and

they shall be released on bail, provided each of them executes a

personal bond in the sum of Rs.50,000/-with two sureties of

Rs.25,000/- to the satisfaction of the learned trial court for

his/her/their appearance in this Court on 24.05.2023 and

whenever ordered to do so till the disposal of the appeals 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) change(s) the place of residence, he/she/they will give in writing his changed address(es) to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(es), they will give in writing their changed address to the trial Court.

9. 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 tried and convicted. A copy of this order

[2023/RJJD/011652] (5 of 5) [SOSA-292/2023]

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(do) not appear before the trial

court, the learned trial Judge shall report the matter to the High

Court for cancellation of bail.

(FARJAND ALI),J 57-58/AnilKC/-

Powered by TCPDF (www.tcpdf.org)