Deepak Joshi vs State Of Rajasthan ...
2023 Latest Caselaw 4827 Raj

[2023/RJJD/016182]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 970/2022

In S.B. Criminal Appeal No.896/2022

Deepak Joshi S/o Bhanwar Lal Brahman, Aged About 21 Years, R/o Kheroda Ps Kheroda Dist. Udaipur (At Present Lodged In Central Jail Udaipur)

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

----Respondent

For Petitioner(s) : Mr. Ashwini Kumar Sharma Mr. S.G. Ojha For Respondent(s) : Mr. Javed Gauri, PP Mr. Murli Sen for complainant

HON'BLE MR. JUSTICE FARJAND ALI

Order 18/05/2023

1. The instant application for suspension of sentence has been

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

18.06.2022 passed by the learned Special Judge of POCSO Act

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

2005, Udaipur in Sessions Case No.72/2020 whereby he was

convicted and sentenced to suffer maximum imprisonment of

twenty years' rigorous imprisonment along with a fine of

Rs.50,000/- under Sections 376-D of IPC and under Sections 3/4

and 4(2) of POCSO Act.

2. The following issues are relevant which put a question over

the sustainability of judgment of conviction;

[2023/RJJD/016182] (2 of 4) [SOSA-970/2022]

(a) the clandestine manner in which the victim joined the

association of the appellant.

(b) there exists betrothment between the boy and the girl.

(c) she frequently used to talk with the appellant on mobile.

(d) Her grandfather, who was examined as DW-3 in the trial,

concedes that his grand-daughter was engaged with the appellant

and noticed conversing with him. The evidence pertaining to her

date of birth is not a sacrosanct piece of evidence. There are

blatant flaws.

(e) Now the parties have resolved the dispute amicably and

complainant does not want to continue further to proceed against

the appellant and agreeable, if the sentence is suspended.

If the issues noted above are considered in favour of the

appellant, he may get acquittal.

3. It is further 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

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

appreciated again by this court being the first appellate Court.

Hearing of the appeal is likely to take long time, therefore, the

application for suspension of sentence may be granted.

4. 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.

Learned counsel for the complainant echoed with the appellant's

prayer.

[2023/RJJD/016182] (3 of 4) [SOSA-970/2022]

5. Heard learned counsel for the parties and perused the

material available on record.

6. Looking to the totality of facts and circumstances of the

case, more particularly the facts that the accused-appellant was

on bail during the course of trial and the hearing of appeal is likely

to take further more time and considering the overall submissions

but 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

sentence passed by learned Special Judge of POCSO Act, 2012 and

Commission for Protection of Child Rights Act, 2005, Udaipur who

passed the impugned order 18.06.2022 in Sessions Case

No.72/2020 against the appellant-applicant- Deepak Joshi S/o

Bhanwar Lal Brahman, 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 20.06.2023 and

whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:-

1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicants change the place of residence,

[2023/RJJD/016182] (4 of 4) [SOSA-970/2022]

they will give in writing their changed addresses 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.

(FARJAND ALI),J 316-Hanuman/-

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