Rajasthan High Court
Iqbal @ Bankya @ Mohammad Miyan S/O ... vs State Of Rajasthan (2024:Rj-Jp:38885) on 12 September, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:38885]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1266/2023
IN
S.B. Criminal Appeal No.2390/2023
Iqbal @ Bankya @ Mohammad Miyan S/o Imamuddin, Aged
About 25 Years, R/o Kali Paltan Kachari Tonk (Presently Confined
In Central Jail Kota)
----Petitioner
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Faheem Akhtar
For Respondent(s) : Mr. Amit Punia, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
12/09/2024
1. Heard learned counsel for the applicant-appellant and
learned Public Prosecutor on the application for suspension of
execution of sentence. Perused the material available on record.
2. The applicant-appellant herein has been convicted for
offences under Sections 363, 366 of IPC & Section 5(l)/6 of
POCSO Act vide judgment dated 10.08.2023 passed by learned
Special Judge, POCSO Act No.3, Kota, Raj. in Sessions Case
No.30/2021 and has been sentenced to maximum punishment of
twenty years.
3. Learned counsel for the applicant submits that learned trial
court has erred in convicting and sentencing the applicant as
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mentioned above. Learned trial court has not appreciated the
evidence in right and correct perspective. Counsel submits that it
is apparent from the record that prosecutrix was the consenting
party. He submits that during the course of investigation, when
statement of prosecutrix was recorded under Section 164 Cr.P.C.,
he stated that she left her parental home on her own with
intention to perform marriage with the appellant. Thereafter, they
entered into marriage which is evident from the nikah-nama i.e.,
(Exhibit D-3). Counsel submits that according to the aadhar card,
birth year of victim is 2000 and as such she was major at the time
of alleged incident. Apart from this, it has been claimed by the
prosecution that at the time of commission of offence prosecutrix
was aged about 16 years & nine months, therefore also, she was
at the verge of majority. It is further submitted that prosecutrix
never disclosed her actual age to the appellant & she showed
herself as major. Counsel submits that on the basis of her aadhar
card, their marriage was performed. According to the medical
examination report of the victim, she was fully developed girl as
her height was 151 CM and weight was 45 Kg and no sign of
forceful sexual intercourse was found on the body of her. It is
further submitted that during trial, applicant was on bail and he did
not misuse the liberty of bail. Counsel submits that as per custody
certificate, appellant-applicant has already served sentence of
almost 2 years. He argues that there is no immediate prospect of
early hearing and disposal of the appeal.
4. Learned Public Prosecutor opposes submissions made by the
learned counsel for appellant. He further submits that victim of
[2024:RJ-JP:38885] (3 of 4) [SOSA-1266/2023]
this case has duly been informed about hearing of this appeal.
5. Despite information, no one has appeared on behalf of victim
to oppose this application for suspension of execution of sentence.
6. Upon a consideration of the arguments advanced on behalf
of the appellant and having regard to the facts and circumstances
as available on the record, especially the fact that victim left her
parental home on her own with the appellant and remained in
company of the appellant for sufficient time and during this
period, she did not make any complaint, so also considering the
different age of the victim which is appearing in different
documents; during trial the appellant was on bail, he has already
served sentence of almost two years and hearing of the appeal will
take long time, but without making any comment on the
merits/demerits of the case, 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 accused
appellant during pendency of the instant appeal.
7. 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, POCSO Act No.3,
Kota, Raj. vide judgment dated 10.08.2023 in Sessions Case
No.30/2021 against the appellant-applicant Iqbal @ Bankya @
Mohammad Miyan S/o Imamuddin 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
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satisfaction of the learned trial Judge for his appearance in this
court on 15.10.2024 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),
he will give in writing their changed address to the
trial Court.
8. 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
GAUTAM JAIN /62
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