Vijay Kumar vs State Of Rajasthan ...
2023 Latest Caselaw 7940 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1173/2023

Vijay Kumar S/o Shri Rajendra Kumar, Aged About 32 Years, B/c Jat, Ward No 2, Lalgarh Jatan , Distt. Sri Ganganagar (At Present Lodged In Central Jail, Sriganganagar)

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

----Respondent

For Petitioner(s) : Mr. Kalu Ram Bhati For Respondent(s) : Mr. Arun Kumar, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/10/2023

1. Learned counsel for the appellant submits that the

suspension of sentence application of co-accused Prem Dudi and

Madan Lal have already been granted by this Court passed in S.B.

Criminal Misc. Suspension of Sentence Application (Appeal)

No.365/2023 and S.B. Criminal Misc. 2nd Suspension of Sentence

Application (Appeal) No.893/2023 vide orders dated 08.05.2023

and 04.09.2023 respectively.

1.1 The order dated 08.05.2023 reads as under :-

"1. The instant 2nd application for suspension of sentence under Section 389 CrPC has been preferred on behalf of the appellantapplicant Prem Dudi S/o Hetram Dudi, who has been convicted and sentenced as under vide the judgment dated 3.12.2018 passed by the learned Special Judge No.1, POCSO Cases, District Sri

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Ganganagar in Sessions Case No.60/2018 (CIS No.173/2018):-

    Offence          for          Sentence awarded
    which
    convicted
    Section 376(2)                Rigorous imprisonment of 10
    (I) IPC                       years alongwith a fine of
                                  Rs.5,000/- and in default of
                                  payment of fine, to undergo
                                  additional             rigorous
                                  imprisonment of one year
    Section 376(2)                Rigorous imprisonment of 10
    (N) IPC                       years alongwith a fine of
                                  Rs.5,000/- and in default of
                                  payment of fine, to undergo
                                  additional             rigorous
                                  imprisonment of one year
    Section 376 D                 Rigorous imprisonment of 20
    IPC                           years alongwith a fine of
                                  Rs.10,000/- and in default of
                                  payment of fine, to undergo
                                  additional             rigorous
                                  imprisonment of one year
    Section 5(G)/6                Rigorous imprisonment of 10
    of the POCSO                  years alongwith a fine of
    Act, 2012                     Rs.5,000/- and in default of
                                  payment of fine, to undergo
                                  additional             rigorous
                                  imprisonment of one year
    Section 5 (L)/6        Rigorous imprisonment of 10
    of the POCSO           years alongwith a fine of
    Act, 2012              Rs.5,000/- and in default of
                           payment of fine, to undergo
                           additional               rigorous
                           imprisonment of one year

2. All the sentences were ordered to run concurrently.

3. Learned counsel for the applicant-appellant submits that the first application for suspension of sentence preferred on behalf of the appellant was rejected by the Coordinate Bench of this Court vide order dated 08.09.2020 passed in S.B. Criminal Misc. Suspension of Sentence Application NO.362/2020 and after that, a period of more than 2 and half years has been lapsed but the appeal could not be listed for final hearing due to paucity of time and the voluminous pendency. He further submits that the applicant-appellant is reported to be incarceration in this case and till date he has served more

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than 8 years and 6 months in custody and there appears no hope of hearing the appeal in near future.

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.

5. Heard learned counsel for the parties and perused the material available on record.

6. The appellant-applicant is reported to be in jail in this case for last more than eight and half years. It is an admitted fact that an inordinate delay was caused in lodging the FIR for which no explanation has been furnished in this regard. The plea raised on behalf of the applicant-appellant regarding false implication is a serious point to ponder over. At the time of trial, the victim P.W. 6 had shown her age to be 17 years. There is a serious discrepancy with regard to her date of birth. In the statement recorded during trial, victim P.W.6 stated her date of birth to be 01.01.1999 whereas in secondary school marksheet (Ex.P/22), her date of birth was mentioned as 01.01.2000. There is ample material on record to show that she persued her primary education at her Grandma's house at Village Surevala where her date of birth was mentioned as 01.01.1995. As per school admission form Ex.P/33 & students admission register Ex.P/34, the date of birth of victim is 01.01.1999. Thus, submission on behalf of the applicantappellant that no clinching and concrete evidence is available on record with which utmost certainty it can be said that the victim was below the age of 18 years at the time of incident; cannot be ruled out or thrown away. If the plea raised by the counsel for the applicant is considered in his favour at the time of hearing of the appeal, he would get acquittal. The testimony of P.W. 4, Indira Devi, the mother of the victim further casts a serious doubt regarding her age. In the case of Satendar Kumar Antil vs central bureau of investigation reported in (2021) 10 SCC 773 and several others cases, it has been propounded that long and indefinite custody would be a ground for suspension of sentence or a regular bail.

7. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the facts that there is serious discrepancy regarding date of birth of victim and the fact that the appellant-applicant is in jail for more than 8 years and six months and hearing of

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the appeal is not likely to be heard in near future 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.

8. Accordingly, the 2nd application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by the learned Special Judge No.1, POCSO Cases, District Sri Ganganagar who passed the impugned order dated 03.12.2018 in Sessions Case No.60/2018 (CIS No.173/2018) against the appellant-applicant- Prem Dudi S/o Hetram Dudi, 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 05.07.2023 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.

3. Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

9. 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 accusedapplicant 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."

2. Learned counsel for the applicant-appellant submits that the

relevant factual matrix is almost similar between the accused-

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Prem Dudi and the present applicant-appellant. He further submits

that the appellant is in custody for last about eight years.

3. Learned Public Prosecutor though opposes the suspension of

sentence application, but is unable to point out any difference in

the factual matrix.

4. On perusal of the record of the case as well as order passed

by coordinate Bench of this Court in the case of Prem Dudi and

while keeping into consideration the fact that the custody is about

eight years and having considered the totality of facts and

circumstances of the case, this Court considers it just and proper

to suspend the substantive sentence awarded to the accused

applicant-appellant.

5. Accordingly, the present fourth suspension of sentence

application is allowed and it is ordered that the substantive

sentence passed by the trial court vide judgment dated

03.12.2018 in Sessions Case No.60/2018 against applicant-

appellant Vijay Kumar S/o Shri Rajendra Kumar shall remain

suspended till final disposal of the aforesaid appeal, 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 06.11.2023 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 appellant changes the place of residence, he will give in writing his changed

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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.

6. The learned trial Court shall keep the record of attendance of

the accused-appellant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

appellant 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-appellant does not appear before the trial court, the

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

cancellation of bail.

(DR.PUSHPENDRA SINGH BHATI), J.

448-Sudheer/-

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