Bhomaram Son Of Shri Banshinath vs State Of Rajasthan
2023 Latest Caselaw 1798 Raj/2

Citation : 2023 Latest Caselaw 1798 Raj/2
Judgement Date : 8 February, 2023

Rajasthan High Court

Bhomaram Son Of Shri Banshinath vs State Of Rajasthan on 8 February, 2023

Bench: Farjand Ali

[2023/RJJP/002181]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

    S.B. Criminal Misc. Suspension of Sentence application No.
                                     25/2023

                                          in

                     S.B. Criminal Appeal No. 25/2023

Bhomaram Son Of Shri Banshinath, Aged About 25 Years,
Resident Of Bagdiya Jod , Pilani Byepass Ke Pass, Chidawa,
Police Station Chidawa, District Jhunjhunu At Present Resident Of
Bhopo Ki Basti, Arai, Police Station Arai, District Ajmer (Raj) (At
Present Accused Petitioner Confined In Crntral Jail Jaipur)
                                                                     ----Appellant
                                      Versus
State Of Rajasthan, Through Public Prosecutor
                                                                   ----Respondent

For Appellant(s)            :     Mr. Bheem Singh Dabla,
For Respondent(s)           :     Mr. B.L. Nasuna, Dy. GA



                HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

08/02/2023

Heard learned counsel for the accused-appellant and learned

Public Prosecutor on the application for suspension of sentence

and perused the judgment impugned dated 29.10.2022 passed by

Special Judge, POCSO Act 2012 and Commission for Protection of

Child Right Act, 2005 No.3, Jaipur Metropolitan-I in Sessions Case

No.08/2022 (CIS No.11/2022) whereby the accused-appellant has

been convicted for the offence punishable under Section 363 IPC

and has been sentenced with maximum of three years simple

imprisonment along with fine of Rs. 20,000/-, under Sections 366

IPC and has been sentenced with maximum of five years simple

[2023/RJJP/002181] (2 of 4) [SOSA-25/2023]

imprisonment along with fine of Rs. 30,000/-, under Section 3/4

(2) of POCSO Act and has been sentenced with maximum of 20

years rigorous imprisonment along with fine of Rs. 50,000/- as

well as and under Section 5(L)(N)/6 of POCSO Act and has been

sentenced with maximum of 20 years Rigorous imprisonment

along with fine of Rs. 50,000/-.

Learned counsel for the accused-appellant submits that the

appellant has falsely been implicated in this matter because of the

personal vengeance and to settle the score when in fact, the sister

of the victim married with the appellant but her family members

were not pleased with this situation and were not agreeable to

accept the relationship, and therefore, the sister in law of the

appellant has been made a tool to wreak vengeance upon the

appellant. Learned counsel further submits that the appellant was

not given a choice to engage an experienced lawyer to defend his

case and instead thereof, counsel from the Legal Aid Services

Authority was provided but he was not having requisite experience

to contest the case of present nature, as a necessary consequence

of which the appellant failed to raise suitable and adequate

defence before the trial Court.

Mr. Bheem Singh Dabla, learned counsel for the appellant

vehemently submits that though document Ex.12, 13 and 14 have

been produced by the prosecution to establish the fact that the

victim was below 18 years of age but the same are not conclusive

proof of her age since the record of the School first attended by

her till Class II was not collected and produced on record. There is

no birth certificate from the corporation or Statistics Department

or Hospital. He drew the attention of this Court towards the

[2023/RJJP/002181] (3 of 4) [SOSA-25/2023]

admission made by the Investigating Officer PW-13 Yashwant

wherein he admits that in the entire episode of crime, the wife of

the appellant was present with the accused and victim. In the light

of this, learned counsel submits that it is almost impossible to

commit an offence of rape upon the younger sister of his wife in

her presence, therefore, the entire store seems to be highly

dubious. He has a strong arguable case in his favour but hearing

of the appeal may take long time to conclude. He was on bail

during the entire course of the trial but the liberty was never

misused. Therefore, the application for suspension of sentence

may be granted.

Learned Public Prosecutor has vehemently opposed the

prayer made by learned counsel for the accused-appellant for

releasing the appellant on bail.

Considering the overall submissions of the parties and

looking to the totality of facts and circumstances of the case 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 appeal, this court is of the opinion

that it is a fit case for suspending the sentence awarded to the

accused-appellant.

Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentence passed by the learned Special Judge, POCSO Act 2012

and Commission for Protection of Child Right Act, 2005 No.3,

Jaipur Metropolitan-I vide judgment dated 29.10.2022 in Sessions

Case No.08/2022 (CIS No.11/2022) against the appellant-

applicant-Bhomaram Son Of Shri Banshinath shall remain

[2023/RJJP/002181] (4 of 4) [SOSA-25/2023]

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 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 13.03.2023 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.