Rajasthan High Court - Jodhpur
Jagdish vs State Of Rajasthan (2024:Rj-Jd:41428) on 9 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:41428]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. IInd Suspension Of Sentence Application
(Appeal) No. 1076/2024
Jagdish S/o Sh. Moola Ram, Aged About 44 Years, R/o Kasai
Mohalla, Marwar Junction, P.S. And Teh. Marwar, Dist. Pali (Raj.).
(Presently Lodged In Central Jail, Jodhpur).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Ms. Komal R. Verma
For Respondent(s) : Mr. Rajesh Bhati, AGA
Mr. Ravindra Singh Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
09/10/2024
1. The first application for suspension of sentence came to be
dismissed by this Court one and half year ago and still
whereafter the appeal could not be reached for hearing on
merits. Hence, this second application for suspension of
sentence is moved on behalf of the appellant.
2. The second application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment
dated 31.03.2022 passed by learned Special Judge (POCSO
Act Cases) No.2, Pali in Sessions Case No.267/2018 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(2)(1)
of the IPC.
3. It is contended that the learned trial Judge has not
appreciated the correct, legal and factual aspects of the
[2024:RJ-JD:41428] (2 of 4) [SOSA-1076/2024]
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.
4. Per contra, learned Additional Government Advocate has
vehemently opposed the prayer made by learned counsel for
the accused-applicant for releasing the appellant on
application for suspension of sentence.
5. Heard learned counsel Ms. Komal R. Verma and the learned
Public Prosecutor and gone through the record of the case.
6. This Court is of the view that every accused has a right to
assail the finding of conviction and order of sentence by way
of filing an appeal before higher Court and by virtue of the
provision contained under Section 386 of the CrPC, this
Court is authorized to make further appreciation of evidence
so as to examine the sustainability of the judgment of
conviction. The appeal had been admitted by this Court way
back and since long the same is not coming on the board for
hearing on merits. The petitioner is behind the bars since
03.02.2018 and a period of six and half years has elapsed
incarcerating the appellant and in near future, there seems
no hope of hearing of the appeal on merits due to
voluminous pendency before this Court. In the circumstances
above, this Court persuaded to examine the matter cursorily
so as to make justifiable disposal of the application for
suspension of sentence.
[2024:RJ-JD:41428] (3 of 4) [SOSA-1076/2024]
7. I have minutely gone through the statement of the victim
(P.W.19), her parents and the Medical Officer, who examined
the victim on the very same day and prepared the report
(Ex.P/20). A perusal of the report (Ex.P/20) revealing that
the hymen of the victim was found intact. The vulva,
pudendum, labia majora and labia minora and all parts were
not found with any injury. It is specifically mentioned in the
report that no external physical injury was seen on the body
of the victim. Taking together the statement of the victim, it
comes to fore that she has levelled allegation of forceful
penetration and at this juncture the statement seems to be
scrutinized cautiously. Another thing which comes on record
is the weak mental condition of the victim. The possibility as
argued by the learned counsel for the appellant that she was
prompted or tutored cannot be ruled out at this stage when
the final adjudication is to be made by this Court upon
hearing the appeal on merits.
8. Another glaring aspect of the case would be that the
prosecution has projected the story that the girl was below
the age of 18 years and thus, the charge under the penal
provisions of POCSO Act was inflicted. However, after
conducting a meticulous appreciation of evidence, the
learned trial Court exonerated the accused appellant from
the charge under Section 5/6 of the POCSO Act. The age of
the victim is also a question to be assessed by this Court
again. Thus, looking to the long incarceration; the
submission that the appellant has a strong arguable case in
his favour and the arguments raised on his behalf, if
[2024:RJ-JD:41428] (4 of 4) [SOSA-1076/2024]
accepted by this Court, then he may get acquittal in the
appeal, this Court feels it appropriate at this stage to extend
the benefit of bail to him.
9. 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) No.2, Pali in Sessions Case No.267/2018 against the
appellant-applicant Jagdish S/o Sh. Moola 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 the learned trial
Judge for his appearance in this Court on 11.11.2024 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.
(FARJAND ALI),J
78-Ashutosh/-
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