Rajasthan High Court
Radhakishan @ Babu Bhai S/O Late ... vs State Of Rajasthan on 2 January, 2023
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Suspension of Sentence Application
No. 1261/2021
In
S.B. Criminal Appeal No. 2025/2021
Radhakishan @ Babu Bhai S/o Late Shri Mohandas, Aged About
51 Years, R/o Tenant Of Mohansingh, Shanti, Nagar, Sukhadiya
Nagar, Clock Tower, Ajmer (Raj) (At Present Confined In Central
Jail Ajmer)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Mr. V.P. Yadav
For Respondent(s) : Mr. Rajendra Yadav, Ga-cum-AAG
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 02.12.2021 passed by
learned Special Judge, POCSO, 2012 and commission for
Protection of Child Rights Act, 2005 whereby the accused
appellant has been convicted for the offence punishable under
Sections 5(L)(m)/6 POCSO Act and has been sentenced to
maximum twenty years rigorous imprisonment along with fine of
Rs.50,000/- as well as for the offence punishable under Section
342 IPC and has been sentenced to one year simple imprisonment
with fine of Rs.1,000/-.
Learned counsel for the appellant submits that appellant has
not committed any offence and he has falsely been implicated in
(2 of 4) [SOSA-1261/2021]
this matter grudge-fully just with a view to wreak vengeance upon
him. There is an inordinate delay in lodging the FIR for which no
satisfactory explanation has been furnished. The matter came to
be reported on 23.11.2020. When the first incident of sodomy
took place, it is not known to the complainant and the last incident
is said to have been committed on 05.10.2020, thus, there was a
delay of more than one and a half month in lodging of FIR which
created a serious doubt over the genuineness and truthfulness of
the allegations levelled. He further submits that there was a
dispute in between the parties in respect of liquidation of certain
amount. It is further submitted that the endeavor made by the
prosecution to connect him with the FSL report itself is sufficient
to show that the things have been done with an ulterior object to
foist a case against the appellant. It is submitted that the
presence of human semen in the anus has been noted by the
Medical Officer on 24.11.2020 and the last alleged date of sodomy
was 05.10.2020 and thus, he submits that even in the wildest of
imagination, the presence of semen in anus cannot persist after
45 days since as per the maximum reported time period at which
semen persists that is 7 days in vagina, 1 day in mouth and 2-3
days in anus/rectum. Generally, semen can persist for the above
maximum period but here in this case, swab was taken after one
and a half month which indicates clear malafide. Learned trial
Court has not appreciated the correct legal and factual aspect of
the matter. The entire evidence is required to be appreciated
afresh. The hearing of appeal would take time.
Learned Public Prosecutor vehemently opposes the prayer
made by learned counsel for the accused-appellant.
(3 of 4) [SOSA-1261/2021]
The appellant was on bail during trial and has never misused
the liberty granted to him 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, vide judgment
dated 02.12.2021 in Sessions Case No.01/2021 against the
appellant-applicant Radhakishan @ Babu Bhai S/o Late Shri
Mohandas 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 02.02.2023 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-1261/2021]
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 /08
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