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2024 DIGILAW 456 (RAJ)

Rajpal v. State of Rajasthan

2024-03-14

ASHUTOSH KUMAR, INDERJEET SINGH

body2024
ORDER : This suspension of sentence application has been filed by the accused-applicant along with the appeal. 2. Learned counsel for the accused-applicant submits that the accused-applicant has been convicted for the offences under Sections 366, 376D & 342 of Indian Penal Code, 1860 and Section 5/6 of the Protection of Children From the Sexual Offences Act, 2012. 3. Learned counsel for the accused-applicant has annexed the certificate under Rule 311 (3) of the Rajasthan High Court Rules to the effect that the applicant is confined in Central Jail, Bikaner. He further submits that the applicant has been falsely implicated in this matter and he has already served the sentence for a period of more than seven years. He further submits the sentence of similarly situated co-accused persons namely Babita @ Babli and Vikram Singh has already been suspended by the Co-ordinate Bench of this Court vide order dated 07.02.2022 in D.B. Criminal Misc. Suspension of Sentence Application No.473/2019 in D.B. Criminal Appeal No.399/2018, which reads as under:- "Heard on application for suspension of sentence of the appellants. Learned counsel for the appellants would argue that the prosecution has utterly failed to prove its case beyond reasonable doubt. Learned counsel for the appellants would contend that so far as the age of the prosecutrix is concerned, father of the prosecutrix, P.W.3 admits that the age was got recorded in the school only on estimation and not on the basis of any certificate or any other clinching evidence regarding age of the prosecutrix. Recording of age by P.W.7, teacher is stated to be on the basis of the declaration made by the mother of the prosecutrix, who has not been examined by the prosecution during trial. It is further argued that thus, the age of the prosecutrix is only on some estimation and there is no evidence in the form of ossification test laid by the prosecution. Therefore, it is doubtful whether on the date of incident, the prosecutrix was minor or not. The other limb of submission of learned counsel for the appellants is that the evidence of the prosecutrix, P.W.2 itself shows that the prosecutrix herself had gone along with the accused in a vehicle and thereafter, she was taken to another destination and next day, she stated to have come back, but F.I.R. was lodged after about a week and there is no explanation regarding that delay. In addition, it is submitted that evidence on record led by the prosecution also suggests existence of animosity. Appellants have undergone almost four years of jail sentence by now and, therefore, they may be granted bail, as the appeal has not been heard on merits. On the other hand, learned State Counsel would submit that the doubts, which have been expressed on the evidence of the prosecution, are not of such nature as to altogether disbelieve an otherwise reliable testimony of the prosecutrix, who has clearly stated that after she was taken in a vehicle, made to stay overnight and then against her wishes, she was subjected to sexual intercourse. According to State Counsel, medical evidence on record, which included examination on the prosecutrix, itself shows that she was habitual to sexual intercourse. Learned State Counsel would submit that the prosecutrix on the date of commission of offence was less than 18 years of age and, therefore, conviction has been ordered. Having taken into consideration the submissions made by learned counsel for the parties, particularly, taking into consideration nature of evidence to prove the age of the prosecutrix as also the evidence of the prosecutrix regarding she having gone along with the accused, having stayed overnight and that F.I.R. was lodged after about seven days of the incident and that there is no evidence of ossification test led by the prosecution and according to father of the prosecutrix, P.W.3, the age was disclosed only on some estimation and considering that the appellants have undergone almost four years of jail sentence, we are inclined to allow the application for suspension of sentence of the appellants. Accordingly, application for suspension of sentence and grant of bail is allowed. It is directed that the substantive jail sentence awarded to the appellants is suspended and they shall be released on bail on each of them furnishing a personal bond of Rs. 25,000/- along with two local sureties of the like amount to the satisfaction of the Trial Court, for their appearance before the concerned Trial Court on 28.03.2022 and on all such further dates as may be directed by the said Court, interval being not less than one year, during the pendency of the appeal. List the appeal for final hearing." 4. List the appeal for final hearing." 4. He further submits that the hearing/disposal of appeal is likely to take long time, hence, the sentence awarded to the applicant may be suspended and he be released on bail during the pendency of the appeal. 5. He further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Ranjeet Raut v. State of GNCT Delhi (Special Leave Petition (Criminal) Diary No.(s). 22968/2020, decided on 23.07.2021, in which, it has been held as under:- "The petitioner was convicted under Section 302 IPC and sentenced to undergo imprisonment for life. The appeal filed by the petitioner before the High Court is pending. An application was moved by the petitioner before the High Court for suspension of sentence which was rejected. Aggrieved thereby, the petitioner is before this Court. We are informed by Counsel for the petitioner that the petitioner has undergone sentence of 7 years and 4 months. Counsel for the petitioner submitted that there is no likelihood of the appeal being decided soon. The Counsel for the State submitted that the evidence of PWs 1 and 2, which was accepted by the trial court shows that the petitioner has committed a grave offence under Section 302. He requested this Court to permit the petitioner to renew his application for suspension of sentence after some time or direct the appeal to be heard. We are not inclined to give any direction to the High Court to dispose of the appeal out of turn. Taken into account the fact that the petitioner has undergone sentence of more than 7 years, we deem it fit and proper to grant his prayer for suspension of sentence. The petitioner is directed to be released on bail subject to the satisfaction of the trial court. The special leave petition is disposed of. Pending application(s), if any, shall also stand disposed of." 6. Learned Deputy Government Advocate has opposed the present application for suspension of sentence and submits the complainant/victim has been intimated about filing of the criminal appeal as well as application for suspension of sentence. Despite intimation, no one has put in appearance on behalf of the complainant/victim. Report dated 07.02.2024 in this regard has also been submitted by the SHO Police Station Sadar, District Jhunjhunu and the same is taken on record. 7. Despite intimation, no one has put in appearance on behalf of the complainant/victim. Report dated 07.02.2024 in this regard has also been submitted by the SHO Police Station Sadar, District Jhunjhunu and the same is taken on record. 7. We have heard learned counsel for the parties and perused the record. 8. Considering the submissions put-forth by counsel for the parties and taking into account the facts and circumstances of the present case and also considering the facts that the sentence of similarly situated co-accused persons namely Babita @ Babli and Vikram Singh has already been suspended by the Co-ordinate Bench of this Court vide order dated 07.02.2022 in D.B. Criminal Misc. Suspension of Sentence Application No.473/2019 in D.B. Criminal Appeal No.399/2018, the age of the accused-applicant was 20 years at the time of alleged incident, the accused-applicant has already served the sentence for a period of more than seven years, in view of the judgment passed by the Hon'ble Supreme Court in the matter of Ranjeet Raut (supra) and also considering the fact that the hearing of appeal may take long time, We deem it just and proper to allow this criminal miscellaneous suspension of sentence application. 9. Accordingly, the present application for suspension of sentence is allowed. It is ordered that the sentence awarded to accused-applicant Rajpal S/o Sardararam in Sessions Case No.141/2017 (CIS No.161/2017) shall remain suspended during the pendency of the appeal and he shall be released on bail if he furnishes a personal bond of Rs. 1,00,000/- along with two sureties of Rs. 50,000/- each to the satisfaction of the learned Trial Court to the effect that he shall appear before this Court on 03.05.2024 and thereafter as and when called upon to do so. 10. Office is directed to send a copy of this order to the concerned trial Court through e-mail/fax for necessary compliance.