Rajasthan High Court
Sajjad @ Kalu @ Sajid S/O Shri Asgar ... vs State Of Rajasthan on 2 January, 2023
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc. Suspension of Sentence Application No.
1341/2022
In
S.B. Criminal Appeal No. 2059/2022
Sajjad @ Kalu @ Sajid S/o Shri Asgar Ali, Aged About 35 Years,
R/o Ward No. 22, House No. 237, Near Rahmaniya Masjid Adarsh
Nagar, Gudha Mod, Railway Phatak, Jhunjhunu Police Station
Kotwali District Jhunjhunu Presently Tenant Of Asraf Bhai Ka
Makan, Anand Colony, Manbagh, Police Station Brahmpuri Jaipur
(Presently Confined In Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Ms. Anushree Sharma
For Respondent(s) : Mr. S.S. Mahla, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
02/01/2023
Heard learned counsel for the accused appellant and learned
Public Prosecutor on the application for suspension of sentence
and perused the judgment impugned dated 06.10.2022 passed by
learned Special Judge, POCSO Act, 2012, No.2, Jaipur whereby
the accused appellant has been convicted for the offence
punishable under sections 376 IPC and has been sentenced to
maximum ten years imprisonment along with fine of Rs. 50,000/-.
Learned counsel for the accused-appellants submits that the
appellant has falsely been implicated in this matter with oblique
motive, the allegations levelled by the prosecutrix is not at all
(2 of 4) [SOSA-1341/2022]
believable rather the same seems to be flimsy. The manner in
which the incident said to have taken place does not inspire
confidence. The prosecutrix is a married and grown up lady aged
about 23 years having two children. It is reflecting from the FIR
itself that she joined the company of the appellant at her own free
will and volition without there being any compulsion. As per the
allegations, she was subjected to rape at Jaipur in March, 2018
but the report to this regard came to be lodged on 07.06.2019,
however, no explanation whatsoever has been furnished in this
regard and nothing satisfactory has been explained as to why she
had kept mum for a long. The allegations of making video clip has
been belied in the light of the fact that nothing incriminating was
recovered at the instance of the appellant. There is major
discrepancy in the story stated out in the FIR and what has
alleged in the trial. The matter was investigated by a senior Police
Officer in which after investigation it was observed that the
allegations against the other persons were not true and therefore
charge-sheet came to be filed only against the accused appellant.
In this view of the matter, learned counsel submits that to a large
extent, the prosecutrix has been found to be a liar therefore
basing conviction on her tainted evidence would not be safe.
Learned counsel drew attention of this Court towards report under
Section 173 Cr.P.C. wherein the Investigating Officer has observed
that the complainant failed to show the hotel where she was taken
and the place where she was subjected to rape. In light of above,
learned counsel submits that the prosecution has miserably failed
to prove the accusation against the appellant, therefore, pending
appeal his incarceration would not be justifiable.
(3 of 4) [SOSA-1341/2022]
Learned Public Prosecutor vehemently opposes the prayer
made by learned counsel for the accused-appellant.
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 Judge, POCSO Act, 2012,
No.2, Jaipur, vide judgment dated 06.10.2022 in Sessions Case
No. 51/2020 against the appellant-applicant Sajjad @ Kalu @
Sajid S/o Shri Asgar Ali 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 07.02.2023 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-1341/2022]
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 /47
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