Rajasthan High Court

Dinesh Kumar Son Of Late Shri ... vs State Of Rajasthan on 13 February, 2023

Bench: Farjand Ali

[2023/RJJP/002587]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

  S.B. Criminal Miscellaneous Suspension of Sentence Application
                                  No. 969/2022

                                           IN

                     S.B. Criminal Appeal No. 1502/2022

Dinesh Kumar Son Of Late Shri Chauthmal Prajapat, Aged About
39 Years, Resident Of House No. 98, Deep Nagar, Nangal Jaisa
Bohra, Police Station Jhotwara, Jaipur At Present House No. D-
142, Dev Nagar, Police Station Murlipura, Jaipur (At Present
Confined In Central Jail, Jaipur)
                                                                          ----Appellant
                                       Versus
State Of Rajasthan, Through P.p
                                                                    ----Respondent

For Appellant(s)             :     Ms. Saroj Kumari Trivedi
For Respondent(s)            :     Mr. Laxman Meena, P.P.



                HON'BLE MR. JUSTICE FARJAND ALI

                                        Order

13/02/2023

Heard learned counsel for the accused-appellant and learned

Public Prosecutor on the application for suspension of sentence

and perused the judgment impugned dated 12.07.2022 passed by

learned Special Court, POCSO Act, 2012 No. 01, Jaipur

Metropolitan-II in Sessions Case No. 94/2020 whereby the

accused-appellant has been convicted for the offence punishable

under section 9(m)/10 of POCSO Act and has been sentenced with

maximum of seven years simple imprisonment along with fine of

Rs. 2,000/-.

[2023/RJJP/002587] (2 of 7) [SOSA-969/2022]

Learned counsel for the accused-appellant submits that the

trial court has grossly erred in convicting and sentencing the

accused-appellant. It is submitted on behalf of the appellant that

the learned Trial Court has failed to appreciate the correct legal

and factual aspects of the matter and thus, reached on an

erroneous conclusion of guilt. The prosecution has miserably failed

to prove its case beyond every shadow of reasonable doubt as

there are major discrepancies in the statements of prosecution

witnesses. The FIR in the present case came to be filed on the

basis of the written report filed by the mother of the prosecutrix.

In the complainant's examination-in-chief, she has stated that the

date of the incident was 28.10.2019 but the date of incident

mentioned in the FIR lodged at her behest is 27.10.2019. The

cross-examination of the complainant who was examined as PW-1

in the trial is not available in the material available on record and

the cross-examination of some other policeman has been typed in

its place which goes on to show that the trial court did not go

through the examination of PW-1 Mona before passing the

impugned judgment. He was on bail during the entire course of

the trial but the liberty was never misused. He is a young

individual and if his sentence is not suspended, it would adversely

impact his future, therefore, the application for suspension of

sentence may be granted.

Learned public prosecutor vehemently opposes the prayer

made by learned counsel for the accused-appellant for releasing

the appellant on application for suspension of sentence.

[2023/RJJP/002587] (3 of 7) [SOSA-969/2022]

Heard. Perused the entire material available on record, more

particularly the statements of PW(s)-1 and 5 recorded in the trial.

First of all, the trial judge erred in framing charges which led to

making alteration in the charges. In undue haste, statements of

some prosecution witnesses were recorded in pursuance of the

commencement of trial made in accordance with the first order of

charge, thereafter, the charges were altered on 03.12.20 and

thenceforth, the statements of witnesses who had been examined

earlier were recorded again. Surprisingly, the tenour and essence

of both the statements, the one recorded prior to the alteration of

charge and the one recorded post alteration, of multiple

prosecution witnesses are exactly the same. In fact, apart from

the drift of the statements, the actual content and wording of the

statements are also almost identical with minuscule changes here

and there, if any. For instance, the cross-examination of PW-5

recorded before charge-alteration is nearly the same as the cross-

examination of PW-5 recorded post-charge-alteration. If we look

into it furthermore, similar is the case with the cross-examinations

of PW-4 and PW-3, however, keeping brevity in mind, it is safe to

say that the testimonies of numerous prosecution witnesses were

recorded carelessly and this Court feels unnerved at the fact as to

how such similarities can be found in the statements recorded on

different dates. A scrutiny of the statement of PW-1, who is the

mother of the victim and the complainant of the case, recorded in

the trial, on 23.12.2020, reveals that the cross-examination of

some police personnel has been placed in place of cross-

examination of PW-1. A simple reading of the statement of PW-1

[2023/RJJP/002587] (4 of 7) [SOSA-969/2022]

shows that in her answer to the first question put up by the

counsel for the accused to her, she has apparently stated that she

is stationed at Police Station Murlipura since 17th February, 2016,

the site plan was made by the reader, one Mr. Rakesh and that at

that time, Mr. Rakesh, the in-charge, the accused as well as the

mother of the victim were present. It is berserk and beyond

comprehension as to how the answers of the cross-examination of

PW-5 Kamal Singh, who was a constable stationed at the Police

Station Murlipura when the FIR related to the present matter

came to lodged, formed part of the cross-examination of PW-1. It

is astounding as to how the presiding officer appended his

signature on the statement of PW-1 along with the verifying

statement (that formed part of his seal) that the testimony of the

witness has been recorded in the said language under his direction

and that the same has been accepted by the witness after hearing

and understanding the same. A perusal of the FIR reveals that the

FIR has been filed subsequent to filing of a written report by the

mother of the victim on 28.10.2019 regarding the incident that

was alleged to have taken place on 27.10.2019. As per the

submission of learned counsel for the appellant, there are some

discrepancies in the FIR and the statements of the mother of the

victim. The fact of discrepancy as well as the fact that the witness

PW-1 was the complainant and mother of the victim made the

testimony of the said witness important to the case but still the

same was not recorded properly in the trial rather a glaring howler

has been committed. The matter from the testimony of PW-5 has

been exactly copied and placed as cross-examination of PW-1

[2023/RJJP/002587] (5 of 7) [SOSA-969/2022]

without any change in words, phrases, spacing or even the

punctuation marks.

The above observations lead this Court to believe that the

testimonies of the prosecution witnesses were not recorded with

due care and while following proper process of law rather the

learned trial judge has mindlessly appended his signature on the

statements recorded in the trial. If the statement of one of the

most imperative prosecution witnesses has not been recorded and

considered properly and with due application of mind by the

learned trial judge, then the possibility of committing the same

unwitting error with the rest of the testimonies cannot be ruled

out. Thus, there is scope for interference by this Court and the

finding reached by the learned trial judge cannot be said to be

error-free and the accused-appellant cannot be made to suffer in

prison pending appeal as the hearing may take longer time to

conclude.

In light of the above observations and 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 learned Special Judge, POCSO Act No. 01,

Jaipur Metropolitan-II in Sessions Case No. 94/2020 against the

[2023/RJJP/002587] (6 of 7) [SOSA-969/2022]

appellant-applicant- Dinesh Kumar Son Of Late Shri

Chauthmal Prajapat 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 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.