Rajasthan High Court - Jodhpur

Ratanlal vs State Of Rajasthan on 27 April, 2023

Bench: Farjand Ali

[2023/RJJD/012338]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No.336/2023 IN S.B. Criminal Appeal No. 147/2023

Ratanlal S/o Budhram, Aged About 24 Years, Chack-3 Rjd (Sansardesar) P.s. Naimandi Ghadsana Dist. Sriganganagar. (Presently Lodged In Central Jail, Sriganganagar).

----Appellant Versus

1. State of Rajasthan, Through PP.

2. Babbu Singh S/o Mahendra Singh, resident of P.S. Anupgarh, Sriganganagar.

                                                                    ----Respondent


For Appellant(s)             :     Mr. Umesh Kant Vyas
For Respondent(s)            :     Mr. A.R. Choudhary, P.P.
                                   Mr. M.S. Soni for complainant



               HON'BLE MR. JUSTICE FARJAND ALI

                                         Order

27/04/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant-appellant in the matter of

judgment dated 21.11.2022 passed by learned Special Judge,

Special Court, POCSO Act, 2012 and Commission for the

Protection of Child Right Act, 2005 No.2, Sriganganagar in Session

Case No.74/2021 whereby he was convicted and sentenced to

suffer maximum punishment of 10 years rigorous imprisonment

along with fine of Rs.50,000/- and in default of payment of fine to

undergo 1 year additional rigorous imprisonment under Section

376(2)(I) of IPC and lesser punishment for the other offences

under Sections 363 & 366 of IPC and 3/4 of POCSO Act, 2012.

[2023/RJJD/012338] (2 of 5)

2. Learned counsel for the applicant-appellant vehemently and

fervently contended that from the bare perusal of the statement of

victim recorded during the investigation under Section 164 Cr.P.C

and then in the trial manifestly make it clear that she was a

consenting party, she eloped with the appellant at her own free

will and volition without their being any compulsion or coercion.

Learned counsel drew the attention of this court recorded under

Section 161 Cr.P.C. which was tendered in evidence and marked as

Exhibit D-1 wherein she clearly mentioned that she and the

appellant studied in the same school and were in same class, they

were friends and the fact of their intimacy had come to notice of

their parents also. Both the victim and the appellant had

requested to their parents to get solemnize their marriage but

they were not agreeable because both belongs to the different

caste. She further stated that she went to Ramdevra along with

the appellant where the accused appellant was apprehended by

the police. When she was examined in the trial as P.W.5, a perusal

of which does not reflects that she was ever put under duress to

join the company of the appellant rather it is vividly appearing

that she went with the appellant as per her own accord. As far as

question of age of the victim is concerned, learned counsel

submits that the veracity of document Exhibits P.18 & P.19 is

highly questionable. As per the fact, when the girl was brought to

the school by her mother and the admission form was filled no

supportive document even birth certificate from Statistics

Department, Municipal Corporation or any Hospital record or

janam kundli was attached with the admission form. The thumb

impression appended on Exhibits P.9/17 makes it manifestly clear

[2023/RJJD/012338] (3 of 5)

that she was an illiterate lady. She was examined in the trial as

P.W.5 wherein she candidly admits that when her marriage took

place she did not know and she shown her age to be 52 years at

one place and 45 years at another place. She begotten 5 children

and as per her; she gave birth to her first child after 9-10 months

of her marriage. He submits that if her testimony is scrutinized, it

will reveal that the victim was not below the age of 18 years and

thus, the question is still open to moot that whether the victim

would fall under the definition of child age envisaged under POCSO

Act.

3. Learned counsel for the appellant further contended that the

learned trial Judge has not appreciated the correct, legal and

factual aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court.

Learned counsel for the applicant-appellant also submits that

hearing of the appeal is likely to take long time, therefore, the

application for suspension of sentence may be granted.

4. Per contra, learned Public Prosecutor as well as learned

counsel for the respondent - complainant has vehemently opposed

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

for releasing the applicant-appellant by allowing the application for

suspension of sentence. It is submitted that from the oral and

documentary evidence brought on record it is proved that the

victim was below the age of 18 years and she was forced by the

appellant to join his company.

5. Heard and perused the material available on record.

[2023/RJJD/012338] (4 of 5)

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

appeal, submissions made before the court and looking to the

totality of facts and circumstances of the case, more particularly

looking to the fact that appellant has a strong arguable case in his

favour but the hearing of appeal would likely to take further more

time and considering the overall circumstances but 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 appeal, this court is of the opinion that it is a fit

case for suspending the sentence awarded to the accused-

appellant.

7. Accordingly, the present application for suspension of

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

ordered that the sentences passed learned Special Judge, Special

Court, POCSO Act, 2012 and Commission for the Protection of

Child Right Act, 2005 No.2, Sriganganagar in Session Case

No.74/2021 against the appellant-applicant Ratanlal S/o

Budhram remain suspended till final disposal of the aforesaid

appeal and he/she/they shall be released on bail, provided

he/she/each execute 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

28.05.2023 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) change(s) the place of residence, he/she/they will give in writing his

[2023/RJJD/012338] (5 of 5)

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.

8. 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

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.