Sarwan Ram vs State Of Rajasthan ...
2023 Latest Caselaw 5270 Raj

[2023/RJJD/017529]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 60/2023 in D.B.Crimianl Appeal No. 164/2020

Sarwan Ram S/o Fota Ram, Aged About 37 Years, By Caste Bheel, R/o Nawa Tala, P.S. Bijrad, District Barmer. (Presently In Judicial Custody At Sub Jail Balotra).

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Kawita D/o Sarwan Ram, Aged About 14 Years, Through Its Natural Guardian Fota Ram S/o Khanu Ram, Age 55 Years, R/o Nawa Tala, P.s. Bijrad, Dist. Barmer.

----Respondents

For Petitioner(s) : Mr. Siddharth Kawasara. For Respondent(s) : Mr. Anil Joshi, P.P.

Mr. Kishan Lal Vishnoi, for the complainant.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order

25/05/2023

1. The applicant-appellant has been convicted and sentenced as

below vide judgment dated 18/8/2020 passed by the learned

Special Judge, POCSO Act Cases, Balotra in Sessions Case No.

50/2018:

Offences             Sentence                  Fine
323 IPC              01 year Rigorous Rs.1,000/- and in default of
                     Imprisonment     which to further undergo one
                                      month R.I.

376 (2) (n), Life Imprisonment Rs.1,00,000/- and in default 376 (2) (i), 376 of which to further undergo (2) (f), Section one year R.I.

5(l) (m) (n) r/w
Section 6 of
POCSO        Act,





 [2023/RJJD/017529]                     (2 of 5)                        [SOSA-60/2023]

2. The appellant-applicant has preferred the application for

suspension of sentence under Section 389 Cr.P.C. for release on

bail during the pendency of the appeal.

3. It is submitted by learned counsel for the applicant that the

findings of the Special Court, POCSO Cases, Balotra are ex facie

against the law and the material on record.

4. Submissions have been made that the present is a case of a

child being used by the mother on account of matrimonial dispute

with the father, resulting in appellant being incarcerated for over

five years now. Submissions have been made that the allegations

made against the appellant pertain to repeated sexual assault by

the appellant - father, with his 10 years old daughter.

5. It is submitted that besides the fact that the FIR is much

delayed, the medical report (Ex.P/13), which has been duly

proved indicates 'No visible external injury over external

genitalia , No external injury over body, Pain while taking vaginal

swab, Hymen intact, No discharge, No bleeding' and the Doctor

(P.W.10) did not indicate anything about any sign of penetration.

6. Submissions have been made that the very fact that wife of

the appellant got herself examined, wherein, she had received

few superficial injuries, clearly projects that there was some

altercation, which was converted into an altercation post alleged

misbehaviour by the appellant with his daughter.

7. Submissions have been made that admittedly proceedings

initiated by the appellant's wife under Section 498A IPC are

pending.

8. It is further submitted that the appellant in his statement

under Section 313 Cr.P.C. clearly indicated that he has been

[2023/RJJD/017529] (3 of 5) [SOSA-60/2023]

wrongly implicated, his wife does not want to live with him and

only for the purpose of taking revenge, false case has been

foisted. The appellant got himself examined as D.W. 1 and

indicated that after he was sent to jail, his wife married one Bersi

of Bhanwar Village and has left the children with the appellant's

parents and that the case was lodged only for the purpose of said

marriage. No cross examination worth the name was done with

the appellant on the said aspect.

9. It is submitted that the appellant has been wrongly

implicated and has remained in custody for over five years,

therefore, he be enlarged on bail.

10. The application has been vehemently opposed by learned

Public Prosecutor and counsel appearing for the complainant.

11. Submissions have been made that in view of the statement

of child (P.W.7) and that of her mother (P.W.8), wrong doing by

the appellant is well established and, therefore, the application

deserves dismissal.

12. We have considered the submissions made by learned

counsel for the parties and have perused the record of the case

minutely.

13. The matrimonial dispute between the appellant and the

mother of the victim is not in dispute, wherein, proceedings under

Section 498A IPC are pending before the competent court. The

allegation against the father of the victim pertains to repeated

sexual assault, however, looking to the age of the child and the

medical opinion (Ex.P.13) as well as the statement of the Doctor,

noticed hereinbefore, the likelihood of allegations being outcome

of matrimonial discord cannot be ruled out.

[2023/RJJD/017529] (4 of 5) [SOSA-60/2023]

Further, the statement of the appellant regarding the mother

of the victim, his wife, having left the children with grand parents

and having contracted second marriage further supports the plea

raised regarding false implication.

14. In view of the above, without going into the merits of the

case and in view of the fact that the applicant is in incarceration

for over five years now and hearing of the appeal is likely to take

long time, we are inclined to suspend the sentence of the

appellant-applicant Sarwan Ram s/o Fota Ram during the

pendency of the appeal.

15. Accordingly, the instant application for suspension of

sentence filed under Section 389 Cr.P.C. is allowed and it is

ordered that sentence passed by the Special Judge, POCSO Act

Cases, Balotra in Sessions Case No. 50/2018 against the

appellant-applicant Sarwan Ram 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 learned

trial Judge for his appearance in this court on 26/6/2023 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 change 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/017529] (5 of 5) [SOSA-60/2023]

16. 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 relating 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 been taken into account for statistical purpose relating to

pendency and disposal of the cases in the trial court. In case the

said accused-applicant do not appear before the trial court,

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

cancellation of bail.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J

53-baweja/-

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