Rajasthan High Court - Jaipur
Rakesh Kumar S/O Shri Makkhan Lal vs State Of Rajasthan on 17 August, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Misc. Suspension of Sentence Application
No.1288/2020
in
D.B. Criminal Appeal No. 208/2020
Rakesh Kumar S/o Shri Makkhan Lal, Aged About 22 Years, R/o
Shivsinghpura Police Station Amarsar Distt. Jaipur At Present In
Central Jail Jaipur.
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. Harendra Singh Sinsinwar For Respondent(s) : Ms. Alka Bhatnagar, AGA Mr. Dipendra Choudhary, on behalf of Mr. Rajesh Kumar Sharma HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE RAMESHWAR VYAS Order 17/08/2021 The instant application for suspension of sentence under Section 389 CrPC is preferred on behalf of the appellant- applicant Rakesh Kumar S/o Makkhan Lal, who has been convicted and sentenced to for the offences under Sections 363, 366, 376(2)(N) IPC and Section 5(J)(ii) read with Section 6 of the POCSO Act vide the judgment dated 30.07.2020 passed by learned learned Judge, Special Court, POCSO Act Cases, Jaipur District in Sessions Case No.14/2019.
Learned Public Prosecutor has filed reply to the application for suspension of sentences.
(Downloaded on 18/08/2021 at 10:04:52 PM)
(2 of 6) [SOSA-1288/2020] Heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant and perused the material available on record.
Learned counsel Mr. Harendra Singh Sinsinwar, representing the appellant-applicant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The victim Mst. 'M' was definitely a major girl on the date of the incident. She voluntarily eloped with the appellant and travelled together with him and sexual relations were established between the appellant and the victim with consent. He points out that the incident took place in the month of December 2018. The prosecution has placed reliance on the school documents Ex.P/19 to Ex.P/22-A in order to portray that the date of birth of the victim is 13.06.2001, but as a matter of fact, these documents do not faithfully reflect the correct date of birth of the girl. He submitted that in these documents and the evidence of the material prosecution witnesses, it was portrayed that the victim was straight-off admitted in the 5th Standard of Gurukul Vidhya Ashram, Kariri, Shahpura and hence, the documents pertaining to her admission in this school should be considered conclusive for determining age of he girl. Mr. Sinsinwar drew the court's attention to the statements of Shankar Lal (P.W.2), father of the girl, and Sajana Devi (P.W.11), mother of the girl, and pointed out that both these witnesses admitted that the girl was earlier admitted in the Government Upper Primary School, Tanglyawali (Kariri), Panchayat Samiti Shahpura. He urged that the documents Ex.D/4, Ex.D/5, Ex.D/6 (Scholar Register), Ex.D/7 (Admission Register), Ex.D/8 and Ex.D/9 clearly establish that the victim Mst. 'M' was admitted in the Government Upper Primary (Downloaded on 18/08/2021 at 10:04:52 PM) (3 of 6) [SOSA-1288/2020] School Tangyawali (Kariri) in the year 2004 and in these documents, her date of birth is recorded as 07.07.1999. He further drew the court's attention to the birth certificate (Ex.D/5 and Ex.D/12) issued by the Registrar of Birth and Death, Gram Panchayat Kariri in the year 2007, wherein also the date of birth of the victim is recorded as 07.07.1999. He urged that the affidavit, which the complainant Shankar Lal filed while getting the girl admitted in the 5th Standard is false because in this document, for the first time, the date of birth of the girl was portrayed to be 13.06.2006. The deponent mentioned that his daughter had never studied earlier. Mr. Sinsinwar submitted that Shankar Lal (P.W.2) and Sajana Devi (P.W.11) admitted in their cross- examination that their daughter had stayed in the Tangyawali (Kariri) School at an earlier occasion. He also drew the court's attention to the letter (Ex.D/2) written by the victim before leaving her father' house and contended that a clear case of elopement and consensual sexual relationship has been given the twist of kidnapping and rape of a minor girl on the basis of fabricated evidence. He, thus, urges that the conviction of the appellant as recorded by the trial court is absolutely illegal. The appellant is in custody since December 2018. On these grounds, learned counsel for the appellant-applicant implored the court to accept the application for suspension of sentences and direct release of the appellant on bail during pendency of the appeal.
Per contra, learned Public Prosecutor and the learned counsel representing the complainant vehemently and fervently opposed the submissions advanced by Mr. Sinsinwar and urged that as per the Secondary School Marksheet (Ex.P/10-A), which has been relied upon by the rial court, the date of birth of the girl (Downloaded on 18/08/2021 at 10:04:52 PM) (4 of 6) [SOSA-1288/2020] is 13.06.2001 and thus, she was definitely minor on the date of the incident and thus, her consent would be immaterial for sexual relations. They, thus, submitted that the appellant does not deserve indulgence of bail because there is distinct allegation of the victim regarding the appellant having kidnapped her and subjecting her to forcible sexual assault.
We have given our thoughtful consideration to the submissions advanced by the learned counsel for the parties and gone through the material available on record. The fact that the victim eloped with the appellant is apparent from the contents of the FIR (Ex.P/11) as well as the 164 CrPC statement of the victim (Ex.P/10). Thus, the only issue which remains for consideration of this court is whether the date of birth of the girl as recorded in the Secondary School Certificate (Ex.P/10-A) should be given primacy over the contemporaneous school record, which has been proved by the defence. The complainant Shankar Lal, father of the girl, and Smt. Sajana Devi, mother of the girl, admitted in their evidence that in initial stages, the victim was got admitted in the Government Upper Primary School, Tangyawali (Kariri). For proving that the date of birth of the girl was 13.06.2001, the prosecution tried to portray that the girl was for the first time admitted in a school in the 5 th Standard. Ex facie the said assertion appears to be totally dubious. In contravention to the above, the defence has proved the contemporaneous school record procured from the Government Upper Primary School, Tangyawali, where the girl admittedly was admitted initially. As per the scholar register (Ex.D/6), the girl was admitted in the first standard of the said school on 01.07.2004. Her date of birth in this document is recorded as 07.07.1999. She continued to study (Downloaded on 18/08/2021 at 10:04:52 PM) (5 of 6) [SOSA-1288/2020] in the second, third and fourth standards in the same school, whereafter, it appears that she was got transferred for being admitted elsewhere. While getting the girl admitted in the 5 th Standard of Gurukul Vidhya Ashram Kariri, Shahpura, the girl's father filed an affidavit (ExD/14-A), wherein the date of birth of the girl is recorded as 13.06.2001 and a note is appended that his daughter had never studied in any other school previously. This affidavit is apparently false in the face of the documents referred to supra. Thus, we are of the view that the appellant has made out a strong case to satisfy the court that the date of birth of the victim recorded in the Secondary School Marksheet (Ex.P/10-A) cannot be accepted as being unimpeachable. As per the documents proved by defence, the girl was major on the date of the incident. The fact regarding elopement of the girl with the appellant is virtually admitted. In this background, clearly the appellant has strong and plausible grounds available to him for assailing the impugned judgment. Hearing of the appeal is likely to consume time.
In this background 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 during the pendency of the appeal.
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 Judge, Special Court, POCSO Act Cases, Jaipur District vide judgment dated 30.07.2020 in Sessions Case No.14/2019 against the appellant-applicant Rakesh Kumar S/o Makkhan Lal, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he (Downloaded on 18/08/2021 at 10:04:52 PM) (6 of 6) [SOSA-1288/2020] 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 17.09.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicant changes the place of residence, he will give in writing his 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.
The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant 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 applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
Pramod/7
(Downloaded on 18/08/2021 at 10:04:52 PM)
Powered by TCPDF (www.tcpdf.org)