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2020 DIGILAW 289 (RAJ)

Hem Singh v. State

2020-01-30

SANDEEP MEHTA, VIJAY BISHNOI

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JUDGMENT 1. The learned Public Prosecutor has chosen not to file reply to the application for suspension of sentences and proposes to argue the matter orally. 2. Heard learned counsel for the applicant-appellant as well as learned Public Prosecutor and perused the material available on record. 3. Shri Pradeep Shah learned counsel representing the applicant-appellant submits that the prosecution has failed to prove that the victim was below 18 years of age on the date of incident. He referred to the statement of Dr. Sushil Jeengar (PW- 11) and urged that Medical Jurist stated in his examination-inchief that the lower end of the humerus attached to the elbow was fused, upper ends of ulna and radius were also fused. In cross examination the doctor admitted that the fusion of humerus bones takes place before 18 years of age. He urges that Dr. Sushma Singh Rathore (PW-14) who conducted the medical evidence regarding rape upon the victim admitted that she did not notice any marks of violence on the victim s body. He further submitted that Mst. S (PW-1) stated in her examination-in-chief that while the accused was indulging in the sexual act with her, two women Leela and Bhanwari came there on which, an alarm was raised. Shri Shah further submitted that it was revealed in investigation that the victim had been admitted to a school but the school record was not produced by the prosecution. Thus, as per him, the prosecution failed to prove the age of victim Mst. S . He urges that the case is of consent and hence accused-appellant deserves to be granted indulgence of bail during pendency of appeal. 4. Learned Public Prosecutor on the other hand vehemently and fervently opposed the submissions advanced by appellant s counsel. Nonetheless, he too is not in a position to dispute the fact that during investigation it was revealed that the victim had been admitted to a school but no school record was produced to prove her age. The victim admitted the fact that while the accused was indulging in the sexual act with her, they were seen by two ladies namely Leela and Bhanwari whereafter, the FIR came to be lodged. 5. The victim admitted the fact that while the accused was indulging in the sexual act with her, they were seen by two ladies namely Leela and Bhanwari whereafter, the FIR came to be lodged. 5. Upon a consideration of the arguments advanced at bar and having regard to the facts and circumstances of the case, this Court is of the opinion that it is a fit case for suspending the sentences awarded to the accused appellant. 6. Accordingly, the application for suspension of sentence 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, Rajsamand, vide judgment dated 07.01.2019 in Sessions Case No.15/2018 (CIS No.33/2018) against the appellant-applicant Hem Singh S/o Dalla Singh 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 02.03.2020 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. 7. 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.