Rajasthan High Court
Mudam @ Shakir Mudam S/O Abdul Rahim @ ... vs State Of Rajasthan (2024:Rj-Jp:37224) on 4 September, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:37224]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 14/2024
In S.B. Criminal Appeal No. 35/2024
Mudam @ Shakir Mudam S/o Abdul Rahim @ Abdul Karim, R/o
Village Roteda, P.s. Kapren, Dist. Bundi. (Presently Confined At
Central Jail Bundi)
----Petitioner
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Amit Dadhich
For Respondent(s) : Mr. Amit Punia
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
04/09/2024
1. Heard learned counsel for the applicant-appellant and
learned State counsel on the application for suspension of
execution of sentence.
2. The applicant-appellant herein h as been convicted for the
offences punishable under Sections 363 & 366 of IPC and Section
3/4 (1) of Protection of Children from Sexual Offence Act, 2012
vide judgment dated 14.12.2023 passed by learned Special Judge,
Protection of Children from Sexual Offences Act, 2012 & Child
Right Protection Commission Act, 2005, No.1, Bundi in Sessions
Case No. 90/2022 and has been sentenced to maximum
punishment of ten years.
3. Learned counsel for the appellant-applicant submits that
appellant-applicant has wrongly been convicted by the learned
trial Court. Counsel submits that learned trial Court has failed to
appreciate the evidence available on record in correct perspective.
[2024:RJ-JP:37224] (2 of 4) [SOSA-14/2024]
Counsel submits that learned trial Court committed error in
convicting the appellant solely on the basis of the fact that
prosecutrix was below 18 years at the time of alleged incident.
Counsel submits that it is apparent from the record that
prosecutrix who was at the verge of majority (17 years 6 months)
at the time of alleged incident, was in a affair with the appellant
who was 24 years old at the time of alleged incident. Counsel
submits that according to the prosecution case, appellant has
taken away the prosecutrix on motorcycle and thereafter she was
raped by the appellant. Counsel submits that it has been admitted
by the prosecutrix that one mobile phone was given to her by the
appellant-applicant forcefully and it is also appears from the
record that she changed the story in her Court testimony. Counsel
submits that it has been alleged that appellant-applicant has taken
her away by administrating some drug at motorcycle. Counsel
submits that it has been observed by the learned trial Court that
prosecutrix was a consenting party and relations between
appellant and prosecutrix was consensual in nature. Counsel
submits that it is apparent from the record that prosecutrix never
disclosed her actual age to the appellant-applicant and always
presented herself as major. Counsel submits that school certificate
is not a conclusive proof regarding age of the prosecutrix and
other circumstances are also required to be taken into
consideration. Counsel further submits that during trial,
appellant-applicant was on bail and till date appellant has suffered
almost one year of incarceration and there is no immediate
prospect of this appeal being heard and disposed of in near future.
[2024:RJ-JP:37224] (3 of 4) [SOSA-14/2024]
4. Learned State counsel opposes the submissions made by
counsel for the appellant. He submits that there is specific
allegation of commission of rape against the appellant. He submits
that despite information, no one has put in appearance on behalf
of victim/complainant.
5. Upon a consideration of the arguments advanced on behalf
of the appellant as well as learned State Counsel and having
regard to the facts and circumstances as available on the record
and especially the fact that at the time of alleged incident,
prosecutrix was at the verge of majority and she left her parental
home on her own and also considering the fact that a mobile
phone was also given by the appellant to the prosecutrix; during
trial appellant was on bail and there is no immediate prospect of
of this appeal being heard and disposed of in near future, this
Court is of the opinion that the appellant has available to him
strong grounds to assail the impugned judgment of conviction and
sentence. Thus, it is a fit case for suspending the sentences
awarded to the applicant-appellant during pendency of the instant
appeal.
6. Accordingly, the application for suspension of sentence filed
under Section 389 Cr.P.C. is allowed and it is ordered that the
sentences passed by the learned Special Judge, Protection of
Children from Sexual Offences Act, 2012 & Child Right Protection
Commission Act, 2005, No.1, Bundi (Raj.) vide judgment dated
14.12.2023 in Sessions Case No. 90/2022 against the appellant-
applicant Mudam @ Shakir Mudam S/o Abdul Rahim @ Abdul
Karim shall remain suspended till final disposal of the aforesaid
[2024:RJ-JP:37224] (4 of 4) [SOSA-14/2024]
appeal and he shall be released on bail, provided he execute 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 09.10.2024 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.
7. 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
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(ANIL KUMAR UPMAN),J
LALIT MOHAN /96
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