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2024 DIGILAW 361 (RAJ)

Babulal @ Babaliya v. State of Rajasthan

2024-02-27

DINESH MEHTA, RAJENDRA PRAKASH SONI

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JUDGMENT : Dinesh Mehta, J. 1. The appellant-convict Babulal @ Babliya has moved the present application under Section 389 of the Code of Criminal Procedure for suspension of sentence during the pendency of the appeal. Vide judgment dated 31.7.2023 passed by the learned Special Judge, POCSO Act Cases, Churu in Sessions Case No. 21/2021, appellant stands convicted and sentenced as mentioned below: Sentenced under Section Sentence awarded Fine imposed Sentence in default of fine 363 of IPC Five years Rigorous Imprisonment Rs. 5,000/- Three months of Simple Imprisonment 366 of IPC Ten years of rigorous imprisonment Rs. 10,000/- Six months of Simple Imprisonment 323 of IPC One year of Rigorous Imprisonment Rs. 1,000/- One Month of Simple Imprisonment 324 of IPC Two year of Rigorous Imprisonment Rs. 2,000/- One Month of Simple Imprisonment 5(m)/6 of POCSO Act Life Imprisonment Rs. 50,000/- Six months of Simple Imprisonment 2. All the sentences were ordered to run concurrently. 3. According to prosecution's narrative, on 17.2.2021 complainant Babulal's daughter, Miss “D” aged about 6 years, returned home with a bite mark near her lip with blood present. When asked, Miss “D” stated to her father that Babliya had taken her away, opened her pajama, fall upon her and bit her on the cheek. The conviction of appellant primarily rests on the testimony of victim. 4. Learned Public Prosecutor has filed reply to the application indicating that the applicant has already undergone more than 3 years of imprisonment excluding remissions. 5. Plea for suspension of sentence and release of appellant on bail pending appeal raised by Shri. Nishant Bora, learned Counsel appearing for the appellant, emanates from his criticism of the impugned judgment of conviction on various counts. To begin with, he contended that findings recorded by the learned Trial Court in respect of aggravated penetrative sexual assault with victim are based on conjecture and surmises rather than on evidence. Referring to the record, it was contended that the first information report was completely silent regarding aggravated penetrative sexual assault with victim because the victim did not disclose any such fact to her father. Referring to the record, it was contended that the first information report was completely silent regarding aggravated penetrative sexual assault with victim because the victim did not disclose any such fact to her father. Such a fact was also not disclosed in the statements recorded under Sections 161 and 164 of the Cr.P.C. as well as the statements of the victim recorded during the trial therefore, if aggravated penetrative sexual assault had happened with her, she would have definitely stated about the injury on her genital part or pain or bleeding there. 6. It is argued that even in the injury report of the victim, no injury was found on her genital parts. In medical examination of victim, her hymen was also found intact and semen was also not found on the private parts of the victim but was found on her clothes. It is further argued that for this reason, the first investigating officer has considered only the charge of sexual assault i.e. Section 7/8 of the POCSO Act as proved, against the appellant. It is further argued that solely based on the DNA report, the second investigating officer considered the offence of aggravated penetrative sexual assault as proved and filed the charge sheet. 7. His further contention is that there was no evidence on record to support the case of the prosecution that the ingredients of the offence under Section 5/6 of the POCSO Act has been proved; that even if the evidence of victim is accepted literally as true, the case does not travel beyond offence under Section 18 of the POCSO Act; that hearing of the appeal is likely to take time, therefore, sentences awarded to the applicant appellant deserves to be suspended during pendency of the appeal. On these grounds he implored the Court to accept the application for suspension of sentences and enlarge the appellant on bail. 8. Opposing the application learned Public Prosecutor appearing for the State has strongly opposed the submissions advanced by the learned Counsel for the appellant applicant. He contended that on conclusion of trial, appellant has been adjudged guilty of the heinous offences and convicted thereof. 8. Opposing the application learned Public Prosecutor appearing for the State has strongly opposed the submissions advanced by the learned Counsel for the appellant applicant. He contended that on conclusion of trial, appellant has been adjudged guilty of the heinous offences and convicted thereof. He argued that looking at the nature of accusation made against the appellant and the manner in which he committed the rape with a child of 6 years as also the nature and quality of evidence connecting him with the crime, there is no good reason for suspension of sentence and his release on bail during the pendency of the appeal. Nonetheless, he too is not in a position to dispute the fact that hymen of victim was found intact and no injury or blood or semen was found in private part of victim. 9. We have heard and considered the submission advanced at the bar and have gone through the impugned judgment as well as the material available on record. 10. On due consideration of the facts and circumstances of the case, particularly keeping in view the evidence available on record and having regard to the fact that statement of victim and contents of F.I.R. have ex-facie visible inconsistencies. A very significant fact that hymen of victim was not ruptured and DNA report was solely based upon semen stains found on the payjama of victim, cannot lose sight of the Court. 11. Ex-facie, we find that the oral and documentary evidence of the prosecution does suffer from apparent infirmities. Whether or not, their statements could be relied upon, so as to uphold conviction of the appellant, would have to be considered when the appeal is being finally decided. 12. Having regard to the entirety of facts and circumstances as available on record and taking note of the striking contradictions appearing in oral and documentary evidence so also the facts noticeable from statements of first Investigation Officer, it is apparent that the contentions of learned Counsel for the appellant do carry weight. 13. Thus, the appellant has strong case so as to assail his conviction for the offence under Section 5(m)/6 of POCSO Act. Appeal is not likely to mature for hearing in the near future. In this background, we are of the opinion that the appellant has available to him a strong plausible grounds for assailing the impugned order. 14. 13. Thus, the appellant has strong case so as to assail his conviction for the offence under Section 5(m)/6 of POCSO Act. Appeal is not likely to mature for hearing in the near future. In this background, we are of the opinion that the appellant has available to him a strong plausible grounds for assailing the impugned order. 14. As such, on consideration of the totality of facts and circumstances and the position in facts and law discussed hereinabove and the bleak chances of early disposal of the appeal, we are inclined to suspend the sentences awarded to the appellant, during pendency of the appeal. 15. 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 learned Special Judge, POCSO Act Cases. Churu vide judgment dated 31.7.2023 in Sessions case No. 21/2021 against the applicant-appellant Babulal @ Babliya 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/- (Rupees Fifty Thousand Only) with two sureties of Rs. 25,000/- (Rupees Twenty Five Thousands Only) each to the satisfaction of the learned Trial Judge for his appearance in this Court on 27.3.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below.