Jeetu Singh vs State Of Rajasthan ...
2023 Latest Caselaw 5269 Raj

[2023/RJJD/017535]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 125/2023

Jeetu Singh S/o Ratan Singh, Aged About 29 Years, R/o Rajpura, Ps Takhtgarh, Dist. Pali (Raj.) (Lodged At Central Jail Jodhpur).

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Bahadur Singh S/o Ratan Singh, B/c Rajput, R/o Badla, Teh. Sheoganj, P.s. Sheoganj, Dist. Sirohi (Raj.).

----Respondents

For Petitioner(s) : Mr. J.S. Choudhary, Sr. Adv.

Mr. Pradeep Choudhary For Respondent(s) : Mr. A.R. Choudhary, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Order

25/05/2023

1. The instant application for suspension of sentence has been

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

20.09.2022 passed by the learned Special Judge, Special Court

(Protection of Children from Sexual Offences Act, 2012 and

Commissions for Protection of Child Rights Act, 2005), Sirohi in

Special Case No. 11/2020 whereby he was convicted and

sentenced to suffer maximum punishment of 20 years rigorous

imprisonment along with fine of Rs. 25,000/- under Section 5(l)/6

of POCSO Act and lesser punishment for other offences under

Sections 343, 363 and 366 of IPC.

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

trial Judge has not appreciated the correct, legal and factual

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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. The

petitioner is a young boy and there is no apprehension that he will

abscond. It is further submitted that the age of the prosecutrix as

stated by the prosecution is false and she was a major at the time

of the alleged incident. 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 vehemently opposes

the prayer made by learned counsel for the accused-applicant for

releasing the appellant on application for suspension of sentence

and submits that the accused has been convicted for commission

of serious offences and should not be given the benefit available

under the provision of Section 389 of CrPC.

4. Heard learned counsel for the parties and perused the

material available on record.

5. If the testimonies of the prosecution witnesses are

scrutinised, it is revealed that there are discrepancies in their

statements regarding the age of the prosecutrix/victim. The victim

-P (PW-1) has deposed before the Court that she has an elder

brother and an elder sister born before her and that she had not

turned 18 when she was taken away by the petitioner whereas her

mother Ms. Devi, who was examined in the trial as PW-3, has

testified before the trial judge on 03.02.2021 that she got married

around 30 years ago and her first child Mahaveer was born after a

year of her marriage. She has further deposed that after the birth

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of Mahaveer, Dimple was born after passing of another two years

and then, the third child, who is the victim of the present matter,

was born after passing of three years which means that the victim

was born around 23 years ago as per her mother's testimony.

Even if it is assumed that the estimate of the mother is off the

mark by two-three years still tentatively it can be assumed that

there is a serious dispute over her being below the age of 18

years.

6. Further, the father of the prosecutrix has deposed that

Exhibit P-12 is the document certifying the age of the prosecutrix

but the same was issued after the date of incident on 14.08.2020.

He has further deposed that he had got a birth certificate made for

his daughter- P from the panchayat before Exhibit P-12 was made,

however, he admitted that the same is not available on record. A

prima facie opinion can be formed that the age of the prosecutrix

cannot be ascertained beyond doubt from the school records as

well.

7. It has been admitted by the prosecutrix at several points in

her cross-examination that she did not shout for help at public

places and she has made certain additions to her statement before

the court which were not present in her earlier statements.

8. PW-16 Ajay Singh, in whose house the appellant and the

prosecutrix had stayed for two days and from where they were

recovered by the police, stated in his on-oath statement that the

appearance of the prosecutrix was that of a married lady and that

she used to stay back alone in the house when the accused-

[2023/RJJD/017535] (4 of 6) [SOSA-125/2023]

applicant used to go for work. It is even stated therein that the

victim-P used to go out to the market as well. The testimony of

PW-16 and the fact that the victim did not seek help when she

could place serious doubts on the aspect of consent. There is

prima facie material available on record showing that she was all-

over a consenting party.

9. One of the foundational facts to be proved in a case

pertaining to commission of offence under POCSO Act is the age of

the victim and there is a pall of doubt falling over the same in the

present matter.

10. Keeping in mind the contrariety over the age of the

prosecutrix and lack of certainty on the point that the act was

done against her consent, the application for suspension of

sentence filed by the accused can be considered on these grounds

tentatively, however, final adjudication over the same shall be

done during the course of hearing of appeal.

11. Considering the overall submissions of the parties 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.

12. 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, Special Court

[2023/RJJD/017535] (5 of 6) [SOSA-125/2023]

(Protection of Children from Sexual Offences Act, 2012 and

Commissions for Protection of Child Rights Act, 2005), Sirohi in

Special Case No. 11/2020 against the appellant-applicant- Jeetu

Singh S/o Ratan 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 court on 26.06.2023 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, they will

give in writing their changed address to the trial Court.

13. 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

[2023/RJJD/017535] (6 of 6) [SOSA-125/2023]

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

cancellation of bail.

(FARJAND ALI),J 90-Ashutosh/-

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