Raj @ Rajkumar vs State Of Rajasthan ...
2023 Latest Caselaw 4279 Raj

[2023/RJJD/014268]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 342/2023

Raj @ Rajkumar S/o Shri Jagdish, Aged About 26 Years, R/o Budal Walli, Kurabad Police Station, District Udaipur. (Confined In Central Jail, Udaipur)

----Petitioner Versus State Of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. J.V.S. Deora For Respondent(s) : Mr. A.R. Choudhary, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

09/05/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

16.01.2023 passed by the learned District & Sessions Judge,

POCSO Act Cases, 2012 and Commission for Protection of Child

Rights Act, 2005, Dungarpur in Sessions Case No.85/2020

whereby he was convicted and sentenced to suffer maximum

imprisonment of ten years' rigorous imprisonment along with a

fine of Rs.1,00,000/- under Section 376(2) of IPC and lesser

punishment for the other offences under Sections 344 and 366 of

IPC.

2. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

aspects of the matter and thus, reached at an erroneous

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conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court. He

was on bail during trial and did not misuse the liberty so granted

to him; hearing of the appeal is likely to take long time, therefore,

the application for suspension of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the appellant on application for suspension of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. The followings are the serious points for consideration which

if decided in favour of the appellant, he may be acquitted from the

charges:-

(a) The manner, in which, she left her parents home and

clandestinely associated with the appellant, went with him on a

motor cycle, indicates that she was not removed forcibly from her

legal guardianship rather she was willing to go with the appellant.

(b) She stayed with the appellant at Village Bhinder and took

a room on rent and lived there for long 15 days which indicates

that she was all over a consenting party because she was having

several opportunities to seek assistance from any person to get rid

of the cage of the appellant.

(c) Whereafter, she went with the appellant on a motor cycle

at a different place and roamed at various public places, which is

another sign indicating her being a consenting party.

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(d) At the another place, both the boy and the girl lived

together as husband and wife and established physical relationship

and stayed for long 18 days in a rented house. From the above a

safe inference can be drawn that there was a consensual sexual

relationship between the parties.

(e) Though, she was projected as a minor but the learned

trial Court has not found the evidence in this regard trustworthy

and, therefore, the appellant was exonerated from the charges

under the Penal Provisions of POCSO Act.

(f) The discrepancies with regard to her age has noticed by

the learned trial Judge in Para 15 of its judgment, further moves

this Court to interfere in the matter.

6. Upon consideration of the aforementioned grounds, it can be

observed that the appellant has a strong arguable case in his

favour and there is every likelihood of his success in the appeal

but the hearing of the same is not going to be done within a short

span. In these circumstances, after hearing learned counsel for

the appellant and learned Public Prosecutor, perused the judgment

and looking to the totality of facts and circumstances of the case

as well as considering the overall submissions 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.

7. Accordingly, the application for suspension of sentence filed

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

[2023/RJJD/014268] (4 of 5) [SOSA-342/2023]

sentence passed by learned District & Sessions Judge, POCSO Act

Cases, 2012 and Commission for Protection of Child Rights Act,

2005, Dungarpur who passed the impugned order dated

16.01.2023 in Sessions Case No. 85/2020 against the appellant-

applicant- Raj @ Rajkumar S/o Shri Jagdish 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 09.06.2023 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.

(3.) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

8. The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was 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 applicant does not appear before the trial court, the

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learned trial Judge shall report the matter to the High Court for

cancellation of bail.

(FARJAND ALI),J 82-divya/-

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