Dinesh vs State (2023:Rj-Jd:28544-Db)
2023 Latest Caselaw 6960 Raj

[2023:RJ-JD:28544-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 253/2020

Dinesh S/o Mangi Lal, Aged About 30 Years, Resident Of Rithola, Chanderia Police Station, Chittorgarh, District Chittorgarh.

----Petitioner Versus

1. State of Rajasthan

2. Smt Asha Devi daughter of Jagdish Chandra Oad, resident of Borkhera, Badi Sadri Police Station, Chittorgarh, District Chittorgarh.

                                                                    ----Respondents


For Petitioner(s)             :    Mr. JVS Deora
For Respondent(s)             :    Mr. B.R. Bishnoi, Public Prosecutor



                        JUSTICE DINESH MEHTA
                     JUSTICE MADAN GOPAL VYAS

                                        Order

06/09/2023

1. This is the IInd bail application for suspension of sentence

under Section 389 of the Code of Criminal Procedure filed on

behalf of the applicant-appellant.

2. Mr. Deora, learned counsel for the applicant argued that not

only in the FIR, even in the statement of the prosecutrix recorded

under Section 161 of the Code of Criminal Procedure, 1973, she

had disclosed her age to be 22 years, though the same appears to

have been over written or manipulated as 17 years.

3. It was contended by learned counsel for the applicant that

the age of the prosecutrix was 22 years, which has been tried to

be improved to 17 years so as to portray the prosecutrix as a

minor.

[2023:RJ-JD:28544-DB] (2 of 4) [SOSA-253/2020]

4. It was further argued that it was a case of consent, which is

evident from the fact that the prosecutrix had gone with the

applicant at two to three places whereafter the case of rape has

been registered on account of strained relationship or under

pressure.

5. Mr. Deora argued that there is every possibility of his appeal

being allowed. He further submitted that the applicant has

undergone sentence of 7 years and 8 months and the hearing of

appeal will take substantial time while highlighting that during the

trial, the applicant remained on bail.

6. With these submissions, he prayed that the sentence of the

applicant be suspended during the pendency of the appeal.

7. Learned Public Prosecutor opposed the application for

suspension of sentence and submitted that first application for

suspension of sentence was rejected by co-ordinate Bench of this

Court vide order dated 22.02.2018 after carefully going through

the statement of P.W.3 - prosecutrix and therefore, no fresh look

can be given to her statement. He argued that the applicant's

sentence does not deserve to be suspended.

8. Heard learned counsel for the parties and perused the

material available on record.

9. The fact which has been highlighted by Mr. Deora, learned

counsel for the applicant-appellant is that, in the statement of

prosecutrix and the FIR, her age has been shown to be 22 years.

Prosecutrix's statement under Section 161 of the Code of Criminal

Procedure, so far as her age is concerned appears to have been

tampered with to look as 17 years in place of 22 years.

[2023:RJ-JD:28544-DB] (3 of 4) [SOSA-253/2020]

10. That apart considering the fact that but for the age the case

prima-facie appears to be voluntary elopement of the prosecturix,

and that the applicant has served sentence of 7 years and 8

months, we are inclined to accept the application of suspension.

11. Accordingly, this IInd Bail application for suspension of

sentence filed under Section 389 of the Code of Criminal

Procedure is allowed and it is ordered that the sentence passed by

the learned Additional Sessions Judge No.1, Nimbahera, Camp

Badi Sadri, District Chittorgarh vide judgment dated 08.06.2017 in

Sessions Case No.12/2012 for the offences under Sections 366,

376(2)(g) and 120-B of the Indian Penal Code against the

appellant-applicant Dinesh S/o Mangi Lal 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 06.10.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

(i) That he will appear before the trial Court in the month of

January of every year till the appeal is decided.

(ii) 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.

(iii) Similarly, if the sureties change their address, they will

give in writing their changed address to the trial Court.

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

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

[2023:RJ-JD:28544-DB] (4 of 4) [SOSA-253/2020]

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.

                                   (MADAN GOPAL VYAS),J                                         (DINESH MEHTA),J
                                    1-akansha-









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