Rajasthan High Court - Jodhpur

Gyani vs State Of Rajasthan (2025:Rj-Jd:51177) on 26 November, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:51177]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
      S.B. Criminal Misc. II Suspension Of Sentence Application
                          (Appeal) No. 1969/2025

 Gyani S/o Shri Lalchand, Aged About 29 Years, R/o Ward No. 18,
 Rawatsar,     Police    Station       Rawatsar,         District    Hanumangarh,
 Rajasthan. (At Present Lodged In Central Jail Bikaner)
                                                                       ----Petitioner
                                       Versus
 1.      State Of Rajasthan, Through Public Prosecutor
 2.      Sagar S/o Dungar Ram, Aged About 50 Years, Ward
         No.18 , Rawatsar, District Hanumangarh Rajasthan
                                                                    ----Respondents


For Petitioner(s)            :     Mr. BS Rathore
For Respondent(s)            :     Mr. NS Chandawat, Dy.G.A.



                HON'BLE MR. JUSTICE FARJAND ALI

Order

26/11/2025

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 19.07.2024 passed by the learned Special Judge,

POCSO Act, 2012 Hanumangarh in Sessions Case

No.101/2019 whereby he was convicted and sentenced to

suffer maximum imprisonment of 20 years R.I. under

Sections 376(3) of IPC & 5(l), (j)(ii)/6 of POCSO Act and

lesser punishment for the other offences under Sections 366,

363 of IPC

2. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

aspects of the matter and thus, reached at an erroneous

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conclusion of guilt, therefore, the same is required to be

appreciated again by this court. Hearing of the appeal is likely

to take long time, therefore, the application for suspension of

sentence may be granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant

for releasing the petitioner on application for suspension of

sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. No representative appeared on behalf of the victim. Notices

were issued to her, and it was reported that her father,

Sagarram, has passed away. A copy of the death certificate

was furnished along with the report. The concerned parties

have been informed; however, it appears they chose not to

file a protest, which may be reasonably presumed.

6. The appellant, a young man, has been incarcerated for six

long years, languishing in jail pursuant to the judgment of

conviction and sentence pronounced by the learned trial

court.

7. In the given circumstances, this Court is persuaded to peruse

the record of the case. I have carefully examined the

statement of the victim, 'K', recorded during the trial, as well

as her statement, marked Exhibit P-5, recorded during the

investigation before the Magistrate, along with the other

relevant circumstances.

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8. Prima facie, this Court is of the view that there is merit in the

submission of the learned counsel for the applicant that the

victim was a consenting party, eloped with the applicant of

her own free will and volition, accompanied him to various

places, and lived together with him as husband and wife for

approximately two months. Her failure to raise an alarm or

seek assistance from anyone, despite being in public places

and in a rented house, further lends support to the contention

of a consensual sexual relationship.

9. As far as the question of age is concerned, at this stage, it

may be observed that the academic record produced by the

prosecution during the trial cannot be regarded as a

sacrosanct piece of evidence on the basis of which the

conviction of a young boy and his sentence of twenty years

can be safely upheld.

10 Attention of this Court has been drawn towards the stateemnt

of PW-5, the school headmaster, Ramniwas. He has no

knowledge of the record, having appeared before the Court

only as holder of the record in his capacity as the current

head of the school. Neither was the admission form produced

before him, nor did he make any entries in the school record.

11. It is a well-settled principle of law, and reliance can be placed

on the judgment passed by Hon'ble the Supreme Court in the

case of Vishnu @ Undrya vs. State of Maharashtra, AIR

2006 SC 508, that in cases like the present, the evidence of

the parents of the child would be decisive and should be

given greater weight than the educational records.

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12. PW-2, Smt. Kamla, the mother of the victim, did not provide

any information regarding the age of the victim or whether

she had accompanied her daughter to the school for

admission. She appears unaware of the period she had spent

with her husband Sagarram in matrimony or the age of her

two other children. PW-3, Sagarram, the father of the victim,

is an illiterate person, as is evident from the fact that he

affixed his thumb impression on his statement before the trial

Court. The admissions made by him, along with his responses

during cross-examination by the defence, lend considerable

support to the defence's case. He asserts that he and his wife

went to admit their daughter in the school; however, his wife

does not corroborate this assertion. The witness displayed

oblivion regarding who completed the formality of filling the

admission form. He also failed to provide precise details

about the date of his marriage, the birth of his first child, or

the subsequent children. Additionally, he could not recall

when his son Sunil, who was five years old, had passed away.

Whether conviction and sentencing of twenty years of young

boy would be safe in these circumstances would be a serious

question in the appeal.

13. The submission that a conviction under the POCSO Act, where

the minimum sentence is twenty years, should not be based

on evidence that is not firm and conclusive, deserves

consideration. The appellant has already spent more than six

years in prison. In view of the voluminous pendency of cases

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before this Court, there appears to be little hope or likelihood

of the matter being heard in the near future.

14. The submissions made at the bar have substance that in the

event if the appellant succeeds in appeal, he could be

adequately compensated in terms of money or any other

form of restitution for the period of his detention.

15. Considering the submissions of learned counsel for the parties

and looking to the totality of facts and circumstances of the

case, more particularly the facts/fact that the hearing of

appeal is likely to take further more time and considering the

overall submissions while refraining from passing any

comments on the niceties of the matter and the defects of the

prosecution as the same may put an adverse effect on

hearing of the appeal, this court is of the opinion that it is a

fit case for suspending the sentence awarded to the accused-

petitioner.

16. 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 trial Court, the details of which

are provided in the first para of this order, against the

appellant-applicant named above 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 02.01.2026 and whenever ordered to do so till

the disposal of the appeal on the conditions indicated below:-

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(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.