Deshraj Son Of Brajmohan vs State Of Rajasthan
2023 Latest Caselaw 160 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

      S.B. Criminal Misc. Suspension of Sentence Application
                              No. 474/2022

                                       In

               S.B. Criminal Appeal No. 681/2022

Deshraj Son Of Brajmohan, Resident Of Bharja Ka Tapra, P.s.
Ravanjana Doongar, District Sawai Madhopur (Accused Appellant
Presently Confined In Central Jail, Bharatpur)
                                                                  ----Appellant
                                   Versus
State Of Rajasthan, Through P.p
                                                                ----Respondent

For Appellant(s)         :     Mr. Amir Aziz
For Respondent(s)        :     Mr. S.S. Mahla, PP



             HON'BLE MR. JUSTICE FARJAND ALI

                                    Order

05/01/2023

Heard learned counsel for the accused appellant and learned

Public Prosecutor on the application for suspension of sentence

and perused the judgment impugned dated 08.11.2021 passed by

learned Special Court, POCSO, 2012, Sawaimadhopur whereby the

accused appellant has been convicted for the offence punishable

under sections 363, 366, 376(2)(N) and 354D of IPC and Sections

5/6 and 11/12 of POCSO Act and has been sentenced to maximum

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

and in default of payment of fine further undergo six months R.I.

Learned counsel for the accused-appellants submits that

there is a major discrepancy in the case of the prosecution which

goes to the root of the case and makes the entire story highly

(2 of 4) [SOSA-474/2022]

dubious and therefore, basing conviction on such tainted evidence

would not be safe. It is asserted that in the FIR, Exhibit-P21 which

got lodged at the behest of Ramdhan (PW-6), the father of the

prosecutrix that it was Amrit who while impostering himself as a

woman came to his agricultural field and forcibly took away his

daughter 'Ms. M'. At a subsequent stage, the name of the

appellant has been inserted. Learned counsel further drew

attention towards statement of PW-1, the prosecutrix wherein

even in her examination-in-chief, she admits that while eloping

with the appellant, she took Rs.10,000/- and 1Kg silver ornaments

with her. In the first line of her examination-in-chief she stated

that she made a phone call to her boyfriend Deshraj who is the

appellant here and called him to take her away and thereafter she

went with him and roamed at various places and even used public

transport. As far as the question of the prosecutrix being minor is

concerned, learned counsel drew attention of this Court towards

certain documents made by PW-6-Ramdhan, the father of the

prosecutrix, who even did not know his date of birth and was

having no document on the basis of which the date of birth was

mentioned in the school record. The documents Exhibit-D2 to D4

have been produced on behalf of defence wherein the age of

victim has been shown above 18 years when her marriage got

solemnized in a community gathering. He submits that learned

trial Court has failed to appreciate correct and factual aspects of

the matter and thus committed a grave error of law in convicting

the accused.

Learned Public Prosecutor vehemently opposes the prayer

made by learned counsel for the accused-appellant.

(3 of 4) [SOSA-474/2022]

The accused-appellant is behind the bars and the hearing of

appeal is likely to take further more time, therefore, considering

the overall submissions 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

sentences passed by the learned Special Court, POCSO, 2012,

Sawaimadhopur, vide judgment dated 08.11.2021 in Sessions

Case No.23/2019 against the appellant-applicant Deshraj Son Of

Brajmohan 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 their appearance in this court on 08.02.2023 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) 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.

                                                                                     (4 of 4)              [SOSA-474/2022]



                                           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-

applicants 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 applicants does 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

PREETI VALECHA /35

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