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2019 DIGILAW 190 (RAJ)

Bhuvaneshwar Singh v. State of Rajasthan

2019-01-16

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : 1. Learned Public Prosecutor has chosen not to file reply to this application for suspension of sentences and proposes to argue the matter orally. 2. Heard learned counsel for the applicant and learned Public Prosecutor. Perused the material available on record. 3. The appellant applicant herein stands convicted for the offences under Section 318 I.P.C. and Section 5(c)/6 of POCSO Act vide judgment dated 15.09.2016 passed by the learned Special Judge, (POCSO Act Cases), Bhilwara in Sessions Case No. 30/2014. Shri Farzand Ali and Shri Naman Mohnot learned counsel representing the appellant applicant vehemently and fervently contended that the entire case of the prosecution is false and fabricated. They urged that the F.I.R. (Ex.P/1) was lodged after a significant delay. The victim Mst. P was allegedly subjected to forcible sexual assault by the appellant in the Shishu Gyan School, Asind in the month of September 2013 due to which, she conceived. The girl delivered an aborted foetus on 14.12.2013. They urged that the fact regarding the girl having been allegedly subjected to forcible sexual intercourse by the appellant was admittedly divulged by her to her parents on 14.12.2013 itself but still, the F.I.R. was lodged as late as on 17.12.2013 which clearly creates a grave doubt on the truthfulness of the prosecution story. They referred to the FSL (DNA examination) report (Ex.P18) as per which, DNA profile could not be obtained from the femur bone of the foetus and thus, no conclusion could be drawn regarding its matching with the blood (DNA) sample of the accused appellant herein. Shri Farzand Ali further drew the Court s attention to the statement of the Medical officer Dr.Rajkumar P.W.15 who categorically stated that the foetus which he examined (the one aborted by the victim) was 16 weeks old. Learned defence counsel drew the Court attention to the cross-examination conducted from the Medial Officer wherein, it was elicited that the foetus was weighing 500 gms. which can only be gained when foetus is of 4-5 months. Shri Farzand Ali thus urged that ex-facie, the story set up in the statement of the victim PW-1 Mst. P that the accused appellant subjected her to forcible sexual intercourse in the month of September 2013 is belied by positive medical evidence of Dr. which can only be gained when foetus is of 4-5 months. Shri Farzand Ali thus urged that ex-facie, the story set up in the statement of the victim PW-1 Mst. P that the accused appellant subjected her to forcible sexual intercourse in the month of September 2013 is belied by positive medical evidence of Dr. Rajkumar, who stated that the foetus was 4 months old and thus, the concievement by the victim could not be of September 2013. He thus urged that there are un-surmountable loopholes in the prosecution story which clearly indicate that the entire case is false and fabricated as against the appellant. As per Shri Farzand Ali, the victim conceived from someone else and the appellant was implicated for oblique reasons. He thus urged that the appellant who is in custody for the last more than 5 years, deserves to be enlarged on bail during pendency of the appeal. 4. Learned Public Prosecutor, on the other hand, has vehemently and fervently opposed the submissions advanced by the defence counsel and urged that the minor victim had no cause to falsely implicate the appellant in this case for the reprehensible offence of forcible sexual assault. He further urged that minor discrepancies regarding the age of the foetus and the non-matching of the DNA profile thereof with the sample of the accused, cannot affect the prosecution case so adversely so as to discard the same in entirety. He submitted that the accused appellant has been held guilty of the reprehensible act of committing rape upon a minor child who was studying in accused appellant s mother s school and as such, he does not deserve indulgence of bail. 5. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through the entire record. From the contentions noted hereinabove and the admitted material available on record, the following undisputed conclusions emerge. 6. That the victim categorically stated in her evidence recorded as PW-1 that the accused subjected her to forcible sexual assault on the terrace of the school in the month of September 2013. She came to know that she had conceived on which, she confronted the accused who allegedly gave her tablets for abortion and upon consuming the same, she delivered the aborted foetus in the toilet of the school on 14.12.2013. Dr. She came to know that she had conceived on which, she confronted the accused who allegedly gave her tablets for abortion and upon consuming the same, she delivered the aborted foetus in the toilet of the school on 14.12.2013. Dr. Rajkumar PW-15 who medically examined the foetus, gave affirmative evidence to the effect that the foetus was weighing 500 gms. and was aged 16 weeks and that its sexual characters had also developed. 7. These circumstances are significant enough to establish that the age of the foetus must have crossed 4 months in the minimum. As a direct out come of this categoric medical opinion, the statement of the victim Mst. P that the accused appellant subjected her to sexual assault in the month of September 2013 leading to her pregnancy comes under a serious cloud of doubt. The bone collected from the foetus, the liquid blood of the appellant and the liquid blood of the victim were forwarded for DNA profiling to the FSL from where, the report (Ex.P/18) was received as per which, the foetus bone did not gave sufficient material for comparative profiling. As such, the DNA examination proved unfruitful. The F.I.R. was lodged after three days of delivery of the aborted foetus. The explanation offered by the prosecution for this delay will have to be tested at the stage of final disposal of the appeal. The appellant appears to be having strong grounds to challenge his conviction. He is in custody for the last more than 5 years. Hearing of the appeal is unlikely in the near future. 8. In this background but without commenting on the merits of the case, we are of the opinion that the appellant deserves to be enlarged on bail during pendency of the appeal by suspending the sentences awarded to him. 9. Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge (POCSO Act Cases), Bhilwara vide judgment dated 15.09.2016 in Sessions Case No. 30/2014 against the appellant-applicant Bhuvaneshwar Singh S/o Late Arvind Singh Tomar, 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. 1,00,000/- with two sureties of Rs. 1,00,000/- with two sureties of Rs. 50,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 18.02.2019 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicants changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address, they will give in writing their changed address to the trial Court. 10. The learned trial Court shall keep the record of attendance of the accused-applicants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicants was/were 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 applicants does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.