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2020 DIGILAW 392 (RAJ)

Dashrath Singh Rajput v. State

2020-02-18

PUSHPENDRA SINGH BHATI, SANGEET LODHA

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JUDGMENT : Sangeet Lodha, J. 1. This second application seeking suspension of sentence has been filed by the applicant - Dashrath Singh, who has been convicted and sentenced by judgment dated 20th September, 2017 passed by the Sessions Judge, Jalore in Sessions Case No. 5/2016 for the offences under Sections 342, 366 and 376(d) of IPC. 2. The first application seeking suspension of sentence filed by the applicant was dismissed by this Court vide order dated 24th January, 2018 as not pressed. Hence, this second application. 3. Learned counsel Mr. Pradeep Shah appearing for the applicant submitted that the trial court framed the charge against the applicant with co-accused Kripal Singh for the offences under the POCSO Act, however, after appreciating the evidence on record, the trial court has recorded categorical finding in its judgment that the prosecution has failed to prove that victim was a child on the date of incident. Drawing the attention of the Court towards the statement of the prosecutrix (PW-8), learned counsel submitted that apparently the deposition of the prosecutrix is in contravention to her statements recorded under Section 161 Cr.P.C. (Exhibit-D/4) and under Section 164 Cr.P.C. (Exhibit-D/6). Learned counsel submitted that in her statement under Section 161 Cr.P.C. and the examination before the Magistrate under Section 164 Cr.P.C., no allegation was levelled by the prosecutrix against the applicant and the co-accused that she was subjected to sexual assault. Drawing the attention of the Court towards the medical report (Exhibit-P/7), learned counsel submitted that only two abrasions; one on the right breast and second on the right thigh, were found, no other injuries were found on the body of the prosecutrix. 4. A perusal of the medical report (Exhibit-P/7) reveals that the private part of the prosecutrix was found healthy. The Doctor has not given any expert opinion as to whether rape was committed on the prosecutrix or not. 5. Learned counsel submitted that if the evidence on record is considered in its entirety, the applicant has strong case in his favour. It is submitted that the co-accused Kripal Singh has already been enlarged on bail by a co-ordinate Bench vide order dated 14th November, 2019 passed in D.B. Criminal Misc. Suspension of Sentence Application (Appeal) No. 1202/2019. 6. Learned Public Prosecutor has opposed the bail application, however, the position emerging from the record, as noticed above, is not disputed by the learned Public Prosecutor. Suspension of Sentence Application (Appeal) No. 1202/2019. 6. Learned Public Prosecutor has opposed the bail application, however, the position emerging from the record, as noticed above, is not disputed by the learned Public Prosecutor. It is also not disputed that the case as against the applicant is not distinguishable from the case against the co-accused Kripal Singh, who has already been enlarged on bail by a co-ordinate Bench. 7. Having considered the submissions and taking into consideration totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, we consider it appropriate to suspend the substantive sentence awarded to the applicant. 8. Accordingly, the application for suspension of sentence preferred on behalf of applicant is allowed and it is ordered that the substantive sentence passed by the learned Sessions Judge, Jalore vide judgment dated 20th September, 2017 in Sessions Case No. 5/2016 against the applicant - Dashrath Singh S/o. Padam Singh, shall remain suspended till the final disposal of the aforesaid criminal appeal and he shall be released on bail, provided he executes a persona bond in the sum of Rs. 50,000/- along with two sureties in the sum of Rs. 25,000/- each to the satisfaction of the leaned trial court for his appearance in this Court on 17.03.2020 and subsequently before the trial court on the following conditions: 1. That he will appear before the trial Court in the month of January every year till the appeal is decided. 2. That if the appellant-applicant changes the place of residence, he will give the changed address in writing to the trial court, High Court as well as to his counsel in the High Court. 3. Similarly if sureties change their addresses, they will give in writing their changed address to the trial court. 9. The learned trial court shall keep the record of attendance of the accused applicant-appellant in a separate file. Such file be registered as Criminal Misc. Case related to the Sessions Case in which the accused applicant-appellant was 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. Such file be registered as Criminal Misc. Case related to the Sessions Case in which the accused applicant-appellant was 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 does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.