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2006 DIGILAW 2430 (RAJ)

Iqbal v. State of Rajasthan

2006-08-07

KRISHAN KUMAR ACHARYA

body2006
JUDGMENT 1. - Heard learned counsel for the appellant and learned Public Prosecutor on application under Section 389 Cr.P.C for suspension of sentence. 2. Learned counsel for the appellant states the learned trial Court has found the case of consent so far as rape is concerned but accused-appellant has been convicted only on the basis of age as she was found to be below 16 years of age at the time of alleged occurrence. In support of his argument, he has drawn my attention towards para 18 of the judgment of the learned lower Court. Accused-appellant has been convicted under Sections 376 and 366 I.P.C. and maximum 7 years R.I. has been awarded against him. No Medical examination was done to ascertain her age. As per school certificate of the prosecutrix, her date of birth was found to be 2.3.1990 and she was 15 years 11 months and 11 days at that time of alleged crime. Learned counsel for the appellant states that on what basis this age has been given in school certificate, this matter has not been considered by the learned trial Court and it has wrongly believed school certificate. It is further argued that PW-5 Pana Devi, mother of the prosecutrix admitted that prosecutrix was 16 years of age but after that she changed her statement and said that her age was 15 years. Thereafter, she has said that she does not know the exact date of birth. He has also drawn my attention towards the statement of PW-8 Vidhya Mehta, Headmistress of the school. She has given her statement only on the basis of the record but she has clearly admitted that who has filled the admission form, she cannot say and who has signed it, she cannot say. Learned counsel for the appellant argues that since no medical examination was conducted to ascertain the age of the prosecutrix, therefore, it cannot be said that she was below 16 years of age. He further argues that accused-appellant has arguable case and hearing of the appeal will take time. Therefore, he prays that looking to the fact that it was a matter of consent and age of the prosecutrix was on the boarder line therefore, the sentence awarded to the accused-appellant may be suspended during the pendency of the appeal. 3. He further argues that accused-appellant has arguable case and hearing of the appeal will take time. Therefore, he prays that looking to the fact that it was a matter of consent and age of the prosecutrix was on the boarder line therefore, the sentence awarded to the accused-appellant may be suspended during the pendency of the appeal. 3. Learned Public Prosecutor as well as learned counsel for the complainant have vehemently opposed this application seeking suspension of sentence. They have drawn my attention towards the statement of prosecutrix as well as other evidence and argued that prosecutrix was minor and was kidnapped by the accused-appellant. She was found to be below 16 years of age and learned lower Court has found the case proved under Section 376 I.P.C. also. Therefore, looking to the nature of offence, the sentence awarded to the accused-appellant may not be suspended. 4. I have considered the submissions advanced by learned counsel for the parties and gone through the record of the case. I have also perused the judgment passed by learned lower Court. Although the age of the prosecutrix was shown in the school certificate as 2.3.1990 and she was 15 years 11 months and 11 days at the time of alleged crime but who has filled the school form and who has signed it, has not been produced in the evidence. PW-5 Pana Devi, the mother of the prosecutrix, is unable to tell the exact date of birth of the prosecutrix. No medical examination has been done to ascertain her age. Learned lower Court has found the case of consent regarding the rape and relying on the school certificate, he found the age of the prosecutrix below 16 years and convicted the accused-appellant for the offences noticed above. At this stage, without commenting on the merit of the case, looking to all the facts and circumstances of the case, and taking into account the submission of the learned counsel for the appellants that accused-appellant has strong arguable case and hearing of the appeal will take time, at this stage, without commenting on the merit of the case, I deem it just and proper to suspend the sentence awarded to the accused-appellant. 5. 5. Accordingly, the application under Section 389 Cr.P.C. for suspension of sentence is allowed and it is ordered that the sentence passed by learned Additional Sessions Judge, No. 1 Bikaner vide his judgment dated 15.6.2006 in Sessions Case No. 45/2006 against the accused-appellant Iqbal S/o Srawan Khan shall remain suspended till the final disposal of aforesaid appeal provided he executes a personal bond in the sum of Rs. 20,000/- (Rupees twenty thousand only) along with two sureties in the sum of Rs. 10,000/- (Rupees ten thousand only) each to the satisfaction of the trial Court for his appearance in this Court on 8.9.2006 and whenever called upon to do so.Application allowed. *******