Pankaj @ Pankesh vs State Of Rajasthan ...
2023 Latest Caselaw 5056 Raj

[2023/RJJD/016814]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 469/2023

Pankaj @ Pankesh S/o Virma, Aged About 19 Years, R/o Gamdi Ahada Falla Dhamlat, Ramsagra Police Station, Dungarpur, District Dungarpur. (Lodged In Central Jail, Udaipur)

----Petitioner Versus

1. State Of Rajasthan, Through PP

2. Smt. Tara @ Jeewali W/o Narsingh Ji, B/c Meena, R/o Balwada Falla, Sunela, Dungarpur Kotwali Police Station, Dungarpur, District Dungarpur.

----Respondents

For Petitioner(s) : Mr. Surendra Singh For Respondent(s) : Mr. A.R. Choudhary, PP

HON'BLE MR. JUSTICE FARJAND ALI Order 23/05/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 18.08.2022 passed by learned Special Judge (POCSO

Act Cases), Dungarpur in Sessions Case No.54/2021

whereby he was convicted and sentenced to suffer maximum

punishment of 20 years' rigorous imprisonment along with

compensation fine of Rs.1,00,000/- under Section 376 (3) of

IPC and in alternate offence under Section 5/6 of the POCSO

Act and lesser punishment for the other offences under

Sections 363, 366, 344, 376(2) of the IPC.

2. Learned counsel for the appellant drew the attention of this

Court to the statement of the victim recorded under Section

164 of the Cr.P.C. during the trial and marked as Ex.P-6

wherein she candidly admits that she frequently used to

cope with the appellant, even on one occasion she was seen

[2023/RJJD/016814] (2 of 4) [SOSA-469/2023]

by her mother and for that, she was bashed up. She further

submits that on 26.03.2022 at 5:00 a.m., she left her

parent's home and join the association of the appellant in the

midway. It is submitted that in view of the statement

(Ex.P6) and the other circumstances, a safe inference of

consent can easily be drawn as far as the issue of age is

recorded, learned counsel for the petitioner raises serious

dispute over the sanctity of the documents produced by the

prosecution in the trial and would contend that the

documents produced by the prosecution are not a sacrosanct

piece of the evidence. It is contended 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.

3. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made by learned counsel for 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. After consideration of the submissions and perusal of the

record, it can be said that the appellant has a strong

arguable case in his favour and there is every hope of

success in appeal. In this background, looking to the totality

[2023/RJJD/016814] (3 of 4) [SOSA-469/2023]

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.

6. 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), Dungarpur in Sessions Case No.54/2021 against the

appellant-applicant Pankaj @ Pankesh S/o Virma 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 23.06.2023 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 address(s), they will give in writing their changed address to the trial Court.

[2023/RJJD/016814] (4 of 4) [SOSA-469/2023]

7. 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 learned trial Judge

shall report the matter to the High Court for

cancellation of bail.

(FARJAND ALI),J 102-Ashutosh/-

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