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2019 DIGILAW 3039 (RAJ)

Sharwan Kumar v. State

2019-12-16

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - Heard. Perused the material available on record. 2. The applicant-appellant has been convicted for offences under Sections 363, 376 IPC and Section 5/6 of POCSO Act by judgment dated 11.09.2019 passed by learned Special Judge, POCSO Act Cases, Churu in Sessions Case No.77/2018 (49/2017) (13/2015). 3. Learned Public Prosecutor has chosen not to file reply to the instant application for suspension of sentences and proposes to argue the matter orally. 4. Learned Counsel Shri Vishal Shrama representing the applicant-appellant urges that the conviction of the applicantappellant as recorded by the trial court is totally illegal and unjustified. He urges that the prosecution could not prove the age of the victim by leading cogent evidence. There are grave discrepancies in the evidence of PW.2 Shri Raghuveer (father of the victim) and PW.3 Smt. Manju (mother of the victim) regarding the admission of the girl in the school. While the father Shri Raghuveer stated that his wife got the girl admitted in the school, the mother Smt Manju Devi stated that some teacher came to their house and noted the name of the victim for admission in the school. The date of birth was given by a rough estimate. The radiologist examined during trial estimated the age of the victim to be between 16 to 18 years. He thus urges that there are strong grounds to believe that the prosecution could not prove that the victim was minor as on the date of incident. He further urged that if the investigational statements of the victim (Ex.D/1 and Ex.D/2) (with which she was confronted during her sworn testimony) are seen, apparently, the case at hand is of consensual relations pure and simple between the applicant-appellant and the victim. He thus, urges that the applicant-appellant deserves indulgence of bail during the pendency of the appeal. 5. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions of applicant s counsel and sought dismissal of the application for suspension of sentences. 6. He thus, urges that the applicant-appellant deserves indulgence of bail during the pendency of the appeal. 5. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions of applicant s counsel and sought dismissal of the application for suspension of sentences. 6. Having regard to the entirety of facts and circumstances as available on record and taking note of the striking contradictions appearing in the testimony of the parents of the victim regarding her date of birth and so also the facts noticeable from her investigational statements with which, she was confronted during trial, it is apparent that the contentions of Shri Sharma that there is a serious doubt on the prosecution theory that the victim was minor on the date of incident, and that it is a case of consensual relations do carry weight. 7. 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 Jduge, POCSO Act Cases, Churu vide judgment dated 11.09.2019 in Sessions Case No.77/2018 (49/2017) (13/2015) against the appellant-applicant Sharwan Kumar S/o Shri Bhagu Ram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he shall furnish personal bond in the sum 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 16.01.2020 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 applicant(s) 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(s), they 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(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. 8. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) 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 applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.