Rajasthan High Court

Shankar Lakshkar Son Of Shri Poonam ... vs State Of Rajasthan (2024:Rj-Jp:39634) on 19 September, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JP:39634]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 1346/2023

                                           In

                     S.B. Criminal Appeal No.2544/2023

Shankar Lakshkar Son Of Shri Poonam Chand Lakshkar, Resident
Of Bagreton Ka Mohalla, Sanganer Tehsil Ke Samne, Sanganer,
Police Station Malpura Gate, District Jaipur (Raj) (At Present
Accused Petitioner Confined In Central Jail Jaipur)
                                                                        ----Petitioner
                                         Versus
State Of Rajasthan, Through Public Prosecutor

----Respondent

For Petitioner(s) : Mr. Kirodee Lal Meena For Respondent(s) : Mr. Onkar Singh Rajpurohit, Dy.GC For Complainant(s) : Mr. Vijay Singh Shekhawat

HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Order

19/09/2024

1. Heard learned counsel for the applicant-appellant, learned

State counsel and counsel for the complainant on the application

for suspension of execution of sentence.

2. The applicant-appellant herein h as been convicted for the

offences punishable under Section 363 of IPC and Sections 5(l)/6

& 3/4(2) of Protection of Children from Sexual Offence Act, 2012

vide judgment dated 15.07.2023 passed by learned Special Judge,

Protection of Children from Sexual Offences Act, 2012, No.1,

Jaipur Metropolitan-I in Sessions Case No.05/2021 (CIS

[2024:RJ-JP:39634] (2 of 5) [SOSA-1346/2023]

No.05/2021) and has been sentenced to maximum punishment of

twenty 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.

Counsel submits that learned trial Court committed error in

convicting the appellant solely on the basis of the fact that victim

was below 18 years at the time of alleged incident. Counsel

submits that age of the victim in school record is not conclusive

and same was entered on the basis of speculation/estimation and

no supporting document was produced at the time of admission in

the school. Counsel submits that it has been admitted by the

victim that at the time of the alleged incident she was about 16

years old and her date of birth has been wrongly mentioned in the

school record. It is submitted that victim never disclosed her

actual age to the appellant and always presented herself as major.

It is submitted that she remained in company of the appellant for

sufficient time and during this period, no complaint was made by

her. Counsel submits that victim has alleged that appellant

developed physical relations with her in a public park, despite that

no hues and cries were made by her. Counsel submits that victim

was medically examined and it was observed that she is a mature

girl as conditions for a fully mature girl was precisely met and it

was observed that she has complete set of 32 teeth, her height

was also 151cm and weight was 50kg. Counsel submits that at the

time of the alleged incident victim was working in a garment

[2024:RJ-JP:39634] (3 of 5) [SOSA-1346/2023]

factory on a salary of Rs. 11,000/- per month, which also shows

that she was a mature girl. Counsel submits that according to DNA

report, male DNA of the appellant was found on the undergarment

of the victim but it is of no significance in this matter as appellant

was medically examined on 29.12.2020 and samples were

deposited in the 'malkhana' on 28.12.2020 which creates serious

doubt about depositing and preserving of the samples. Counsel

submits that when victim was initially examined under Section 161

Cr.PC, she clearly stated that appellant was known to her from last

2 years and they were in a relationship. Counsel submits that

appellant is in custody since 28.12.2020 and has suffered

incarceration of about four years till date including remission and

there is no immediate prospect of this appeal being heard and

disposed of in near future.

4. Learned State counsel assisted by learned counsel for the

complainant opposes the submissions made by counsel for the

appellant. It is submitted that as per school record victim was

aged about 12 years and 9 months at the time of the alleged

incident and therefore, it is a case of forceful sexual exploitation

and learned trial Court has rightly recorded the conviction.

5. Upon a consideration of the arguments advanced on behalf

of counsel for the appellant and learned State Counsel and having

regard to the facts and circumstances as available on the record

and especially the fact that it appears from the medical

examination of the victim that she is a mature girl and she was

working in a garment factory on a salary of Rs. 11,000/- per

month; appellant has suffered incarceration of about four years

[2024:RJ-JP:39634] (4 of 5) [SOSA-1346/2023]

and there is no immediate prospect 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 of Cr.PC is allowed and it is ordered that the

sentences passed by the learned Special Judge, Protection of

Children from Sexual Offences Act, 2012, No.1, Jaipur

Metropolitan-I vide judgment dated 15.07.2023 in Sessions Case

No.05/2021 (CIS No.05/2021) against the appellant-applicant

Shankar Lakshkar S/o Shri Poonam Chand Lakshkar shall

remain suspended till final disposal of the aforesaid 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 21.10.2024 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.