Rajasthan High Court - Jodhpur

Dhann Singh @ Bunty vs State Of Rajasthan on 19 May, 2023

Bench: Farjand Ali

[2023/RJJD/016490]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc.Suspension of Sentence Application No.361/2023 In S.B. Criminal Appeal No. 456/2023

Dhann Singh @ Bunty S/o Mangej Singh, Aged About 20 Years, B/c Rajput R/o Bhaisda Khurd Dist. Nagaur (At Present Lodged In Sub Jail Merta)

----Appellant Versus

1. State Of Rajasthan, Through Pp

2. Mahaveer S/o Dwarka Das, Aged About 42 Years, B/c Sad R/o Baisda Khurd Ps Padukallan Dist. Nagaur

----Respondents

For Appellant(s) : Mr. D.S. Rajvi with Mr. Vikas Joshi For Respondent(s) : Mr. Gaurav Singh, AGA

HON'BLE MR. JUSTICE FARJAND ALI

Order

19/05/2023

1. The instant application for suspension of sentence has been

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

10.04.2023 passed by the learned Special Judge, POCSO Act

Cases No.2, Merta in Sessions Case No.139/2021, 94/2022

whereby he was convicted and sentenced to suffer maximum

imprisonment of 20 years under Section 5(L)/6 of the POCSO Act

and lesser punishment for the other offences under Sections 366

& 344 of the IPC.

2. It is contended on behalf of the applicant that a false story

has been cooked up by the prosecution but the same could not

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have been proved in view of the material brought on record. The

incident took place on 11.07.2021 for which, the father of the

victim lodged an FIR No.84/2021 on 12.07.2021 at the Police

Station Merta Road, Nagaur alleging inter alia that his daughter

was taken away by the applicant-appellant by coaxing her. A

perusal of the statement recorded under Section 161 of the Cr.P.C.

marked as Ex.D/1 making it abundantly clear that she eloped with

the applicant-appellant at her own free will and volition and lived

with him for a considerable long time. The fact of her being minor

has not been established beyond reasonable doubt. Hearing of the

appeal is likely to take long time, therefore, the sentence awarded

to the applicant may be suspended during pendency of the appeal.

3. Learned Public Prosecutor has vehemently and fervently

opposed the submissions advanced by the learned counsel for the

applicant.

4. Heard learned counsel for the parties and perused the

material available on record.

5. The perusal of the record revealing that the father of the

victim lodged First Information Report Ex.P/7 on 12.07.2021

alleging inter alia that the appellant took away his daughter by

coaxing her. During investigation, she could be traced out on

12.10.2021 while happily residing with the appellant. She was

examined and her statement under Section 161 of the Cr.P.C. were

recorded on the very same day which has been tendered into

evidence as Ex.D/1 wherein she clearly admits that her parents

were bent upon to marry her at some other place and she was not

[2023/RJJD/016490] (3 of 5) [SOSA-361/2023]

agreeable for that. The appellant was her near neighbour and was

his friend and over the period, she fell in love with him. They

eloped on 11.07.2021 and went to several places and finally made

their abode at Ajmer and resided in a rental house. They married

each other in a temple and put vermilion on her forehead;

thereafter they used to live as husband and wife. When she was

examined in trial, she made several admissions from which a safe

inference of consent can easily be drawn.

6. As far as the age of the victim is concerned, although

Ex.P/14, the admission form dated 06.05.2010 has been tendered

into evidence but a serious dispute has been raised with regard to

its sanctity. The admission form was filled by one Dwarka Prasad

as a guardian of the victim and was submitted to the then institute

head one Shri Shrimali neither Dwarka Prasad nor the person

before whom the admission form was submitted, have been

produced in evidence. It is further revealing from the testimonies

that when the victim got admission in the year 2010, at the

relevant point of time she was 8 years old.

7. Mahaveer, the father of the victim was examined in trial as

P.W. 2, who candidly admits that he was not able to show the date

of birth of his issues including the victim. He made certain

admission which further give strength to the submission of the

appellant that there was no certainty with regard to date of birth

of victim.

8. P.W.4 Shanker Lal is examined to prove the school record but

he was not deployed in the school when the admission was taken

[2023/RJJD/016490] (4 of 5) [SOSA-361/2023]

and even not able to establish the fact that who filled the

admission form and what was his relation with the victim. He

deposed only on the strength of the school record. Thus, it is

strong arguable case that it cannot be said with utmost certainty

that victim was below the age of 18 years at the relevant point of

time. These are the grounds besides others which if adjudicated in

favour of the appellant, he may get acquittal in appeal.

9. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case and the fact hearing of appeal is likely to take further

more time and 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.

10. 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, POCSO Act Cases No.2,

Merta who passed the impugned order 10.04.2023 in Sessions

Case No.139/2021, 94/2022 against the appellant-applicant-

Dhann Singh @ Bunty S/o Mangej Singh 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

[2023/RJJD/016490] (5 of 5) [SOSA-361/2023]

court on 12.07.2023 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.