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2022 DIGILAW 804 (RAJ)

Rajesh Kumar v. State Of Rajasthan

2022-03-08

REKHA BORANA, SANDEEP MEHTA

body2022
JUDGMENT 1. The appellant herein has been convicted and sentenced as below vide judgment dated 15.02.2020 passed by the learned Special Judge, Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Commission for Protection of Child Rights Act, 2005, Bikaner in C.I.S. Case No. 41/2018: Offences Sentences Fine Section 302 IPC Life Imprisonment Rs. 20,000/- in default of which to further undergo 1 Year's additional R.I. Section 306 IPC 10 Years' R.I. Rs. 10,000/- in default of which to further undergo 6 Months' Additional R.I. Section 5/6 of POCSO Act. 14 Years' R.I. Rs. 10,000/- in default of which to further undergo 1 Year's Additional R.I. 2. He has preferred the Appeal No. 106/2020 for challenging his conviction as recorded by the trial court. The instant application for suspension of sentences has been moved on behalf of the appellant under Section 389 Cr.P.C. with a prayer to release him on bail, during pendency of the appeal. 3. Learned Public Prosecutor has filed reply to the application for suspension of sentences as per which, the appellant has suffered actual imprisonment of 8 years 9 months and 6 days as on 08.11.2021 and thus, by now, the custodial period of the appellant has crossed the threshold of 9 years. 4. Brief facts relevant and essential for disposal of the application for suspension of sentence are noted herein below: An FIR (Ex. P/14) came to be filed at Police Station Khajuwala on 26.04.2013 with allegations that the victim and the minor son of the complainant Master 'O' both used to study in 8th Standard in J.R. Dhagar English Medium School, 25 K.Y.D. The complainant was informed by his son Master 'O' that Rajesh Dhagar took him (Master 'O'), the victim and one another girl 'S' to the school on 05.04.2013. Both the girls were taken to the room behind 8th Standard classroom and there, Rajesh indulged in intercourse with them. Master 'O' allegedly saw this act and further informed the complainant that Rajesh Teacher often took the two girls to the school in his jeep and would subject them to intercourse. He would then threaten the boy and the girls of dire consequences if they spoke out regarding these acts. In this sequence, Rajesh took the victim, Master 'O' and Mst. 'S' to the school on 11.04.2013 even though it was a holiday. He would then threaten the boy and the girls of dire consequences if they spoke out regarding these acts. In this sequence, Rajesh took the victim, Master 'O' and Mst. 'S' to the school on 11.04.2013 even though it was a holiday. There, both the girls were subjected to sexual assault behind the 8th Standard classroom. Master 'O' was given a motorcycle and a sum of Rs. 1,000/- and was sent to Khajuwala Mandi for fetching apples and bananas. On returning, Master 'O' saw the accused subjecting the victim and the other girl to rape one after the other. At this point of time, Master 'O' told the accused that he would divulge these incidents to his father on which, he was threatened of dire consequences. The victim started feeling nauseous and was weeping. At that time, Rajesh took Master 'O', the victim and the girl 'S' to the Khajuwala Hospital. The informant's brother-in-law Shri Kaluram (PW-6) also reached the hospital where, Master 'O' and the victim allegedly shared the gory details of the incident with him. They also told that the accused had given some poisonous tablet to the victim and she was hyperventilating. Mst. 'K' expired on which, her body was subjected to postmortem and was cremated by her family members. It was also alleged that Mst. 'S' also passed away on the same day and thus, her body was also cremated by her family members. 5. On the basis of this report, an FIR No. 81/2013 (Ex. P/14) was registered at the Police Station Khajuwala for the offences punishable under Sections 376, 306 and 302 of the IPC and Section 6 of the POCSO Act and investigation was commenced. At the conclusion of the trial, the trial court, proceeded to convict and sentence the accused appellant as above. 6. Shri Mahaveer Bishnoi, learned counsel representing the appellant, vehemently and fervently contended that the entire case set out by the prosecution that the appellant subjected the minor victim 'K' to sexual assault and thereafter, gave her poison mixed water to consume as a result whereof, the child died, is absolutely false and fabricated. He drew the Court's attention to the report (Ex. D/1) submitted by Shri Bhagirath father of the girl to the SHO, Police Station Khajuwala on 11.04.2013 wherein, it was stated that his daughter Mst. He drew the Court's attention to the report (Ex. D/1) submitted by Shri Bhagirath father of the girl to the SHO, Police Station Khajuwala on 11.04.2013 wherein, it was stated that his daughter Mst. 'K' (hereinafter referred to as 'the victim') aged 15 years, used to study under the appellant. She was ailing for the last three months with swelling in abdomen and fever and was being provided treatment at Gharsana. The child had gone to the school in the morning at about 9 O' Clock. Between 09.30 to 10.00 AM., Rajesh called and informed the complainant that his daughter had suffered drug reaction. On this, the complainant sent Raju to the hospital where she had been taken by the appellant. Treatment was being provided to the child. She was referred to the P.B.M. Hospital for further management but expired during treatment. On this report, proceedings under Section 174 Cr.P.C. were undertaken. The statement of Shri Bhagirath was recorded during the course of enquiry of the inquest proceedings as Ex. D/2 wherein, he reiterated the contents of the report (Ex. D/1). Shri Mahaveer Bishnoi vehemently submitted that the gross delay of almost 15 days in lodging the FIR and the apparent exaggerations made therein, completely discredit the prosecution case. The theory put-forth in the FIR and in the statement of the witness Master 'O' regarding he having seen the appellant sexually assaulting the two girls on 05.04.2013, 11.04.2013 and on earlier occasions, is totally concocted and cooked up. There was no reason as to why the victim herself or the witness Master 'O', did not divulge these facts to the first informant or other family members even though there was ample opportunity for them to have done so. He further pointed out that when the witness Master 'O' was examined on oath, he categorically stated that as soon as had he and the victim had been brought to the hospital, his maternal uncle came there and asked the victim as to what had happened to her on which, she divulged that she had consumed a poisonous tablet and that the accused had subjected her to sexual assault. Shri Bishnoi submitted that this being the situation, there was no reason as to why the police officer, even though present at the spot, was not immediately informed of the alleged act of sexual assault with the victim. Shri Bishnoi submitted that this being the situation, there was no reason as to why the police officer, even though present at the spot, was not immediately informed of the alleged act of sexual assault with the victim. He further submitted that the witness Kaluram (PW-6), maternal uncle of the victim, admitted that he was told by the girl on 11.04.2013 itself that she had been subjected to sexual assault by the appellant and then, she was given poison mixed in water. However, the witness made no attempt to report this serious incident to the police officer Vishnu Bhagwan who was present at the hospital. Shri Bishnoi also drew the Court's attention to the fact that Shri Vishnu Bhagwan, ASI was the first police officer who interacted with the first informant Shri Bhagirath and received the report (Ex. D/1). However, the prosecution intentionally withheld the said witness and did not examine him in evidence. As the presence of a police officer at the hospital where the victim was brought on 11.04.2013, is an admitted position, there was no reason as to why the first informant Shri Bhagirath or his brother-in-law Shri Kaluram (PW-6) did not inform the police officer regarding the criminal acts allegedly committed by the accused appellant upon the victim. He thus urged that the prosecution case suffers from blatant falsities, exaggeration and serious lacunas. The appellant, who has suffered incarceration for a period in excess of 9 years, has available to him, strong and plausible grounds for assailing the impugned Judgment. Hearing of the appeal is unlikely in the near future. On these grounds, Shri Bishnoi implored the Court to accept the application for suspension of sentences and direct release of the appellant on bail, during pendency of the appeal. 7. Per contra, learned Public Prosecutor and Shri Pradeep Choudhary, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellant's counsel. They urged that the prosecution case is well established on the basis of direct evidence of Master 'O' and the testimony of Shri Kaluram (PW-6) who has given evidence of oral dying declaration made by the victim Mst. 'K'. They further pointed out that when the clothes of the victim and the accused were tested at the FSL, they gave positive result for presence of semen and hence, the allegation of rape is well established against the appellant. 'K'. They further pointed out that when the clothes of the victim and the accused were tested at the FSL, they gave positive result for presence of semen and hence, the allegation of rape is well established against the appellant. They thus implored the Court to dismiss the application for suspension of sentences. 8. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record. 9. Immediately after the incident, the first informant Bhagirath submitted the report (Ex. D/1) wherein, there is no allegation that the victim had been subjected to rape by the accused and that he administered the poisonous substance to her. There is no doubt that there is a gross delay of 15 days in lodging of the FIR (Ex. P/14). The prosecution has tried to explain the delay saying that Bhagirath was deeply perturbed owing to death of his minor daughter and thus, he could not lodge the report to the police. However, the fact remains that Kaluram (PW-6) before whom the victim allegedly made an oral dying declaration, was present in the hospital on 11.04.2013. The police officer Vishnu Bhagwan was also present in the mortuary at Bikaner but the witness did not divulge anything about the incident to the police officer. He admitted in cross-examination that he could not explain as to why he did not tell the police of these serious incidents of rape and poisoning of his minor niece despite available opportunity. These omissions are quite serious. However, the implication thereof would have to be examined by this Court when the appeal is being finally heard. The prosecution has placed heavy reliance on the FSL report (Ex. P/22) as per which, human semen was detected on the underwear of the accused and the Salwar of the victim. However, the victim's Salwar was handed over to the police officials as late as on 29.04.2013 whereas the underwear of the accused was seized on 27.04.2013. Thus, there is a significant gap between the alleged incident and the seizure of the garments. 10. However, the victim's Salwar was handed over to the police officials as late as on 29.04.2013 whereas the underwear of the accused was seized on 27.04.2013. Thus, there is a significant gap between the alleged incident and the seizure of the garments. 10. In view of the facts noted herein above and, considering the circumstance that the accused has already remained behind bars for a prolonged period of more than 9 years and, since there is no prospect of early hearing of the appeal, but without making any comment on the merits of the case, we are inclined to enlarge the appellant on bail while suspending the sentences awarded to him by the trial court, during pendency of the appeal. 11. 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, Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Commission for Protection of Child Rights Act, 2005, vide judgment dated 15.02.2020 in C.I.S. Case No. 41/2018 against the appellant-applicant Rajesh Kumar, 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 11.04.2022 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. 12. 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. 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.