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2019 DIGILAW 404 (RAJ)

Babu @ Babulal v. State of Rajasthan, Through PP

2019-02-04

SANDEEP MEHTA, VINIT KUMAR MATHUR

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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 defence counsel Shri Rakesh Arora and the learned Public Prosecutor. Perused the impugned judgment and the material available on record. 3. The appellant applicant herein stands convicted for the offences under Sections 363, 366 and 376 IPC vide judgment dated 17.11.2018 passed by the learned Special Judge, Prevention of Children from Sexual Offence Act, Sirohi in Sessions Case No. 01/2018 (49/2017) (9/2014). 4. Shri Arora, learned counsel submits that there is no cogent evidence available on record to satisfy the Court that the victim Mst. K was a minor on the date of the incident. He urges that the trial court itself, while considering this aspect of the matter, recorded a finding that the transfer certificate of the victim Ex.P/10 was proved as per law and accordingly, the medical evidence/ certificate was considered to be more relevant and on the basis thereof, the victim was held to be between 18-20 years of age on the date of incident and the accused was exonerated from the charge under the POCSO Act. He submits that the victim, upon being examined during the trial, was confronted with her previous statement Ex.D/1 wherein, she categorically stated that she eloped with the present applicant voluntarily and went with him to Maharashtra. In such statement, the victim also stated that accused did not subject her to sexual assault. He also drew the Courts attention towards the application Ex.P/13 wherein, the victim as well as her mother, categorically recorded their desire not to have girl subjected to medical examination on the premise that she had never been sexually assaulted. He thus urges that the entire edifice of the prosecution case that the applicant kidnapped the victim and subjected her to sexual assault against her wishes is demolished. He further submits that appellant-applicant was on bail during trial and he did not misuse the liberty so granted to him. On these grounds, he craved acceptance of the application for suspension of sentences and sought release of the appellant-applicant on bail during the pendency of appeal. 5. Per contra, learned Public Prosecutor has opposed the submissions advanced by the appellants counsel. On these grounds, he craved acceptance of the application for suspension of sentences and sought release of the appellant-applicant on bail during the pendency of appeal. 5. Per contra, learned Public Prosecutor has opposed the submissions advanced by the appellants counsel. However, he too is not in a position to dispute the fact that the transfer certificate of the victim depicting her date of birth to be 30.04.1996 was not proved as per law and that the trial court was justified in exonerating the appellant-applicant from the charge under the POCSO Act. He is also not in a position to dispute that when the victim was initially examined by the police officer in her statement marked as Ex.D-1, she did not level any kind of allegation of sexual assault against the appellant and clearly stated that she went with him of her own free will and volition. 6. In this view of the matter, we are of the opinion that the applicant appellant has strong grounds to challenge the impugned judgment of conviction. He was on bail during trial and did not misuse the liberty so granted to him. The hearing of the appeal is likely to consume time. 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 Special Judge, Prevention of Children from Sexual Offence Act, Sirohi, vide judgment dated 17.11.2018 in Sessions Case No. 01/2018 (49/2017) (9/2014) against the appellant-applicant Babu @ Babulal S/o Shri Shanker, 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 05.03.2019 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 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. 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. 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.