Rajendra Singh @ Raju Singh vs State

The instant application for suspension of sentences has been preferred by the applicant-appellant under Section 389 Cr.P.C. seeking release on bail during pendency of the appeal by suspending the sentences awarded by the learned Additional Special Judge, POCSO Act Cases, Rajsamand in Sessions Case No.40/2018 vide judgment dated 3.12.2018 whereby the applicant-appellant has been convicted and sentenced, as below:

Conviction for offences under Sentences Default Sentence

Sections   363 IPC   3 Years' S.I. with a fine of  Rs.1000/- 1 month's S.I.

366 IPC 5 Years' S.I. with a fine of Rs.1000/- 1 month's S.I.

376(2)(n) IPC Life imprisonment with a fine of Rs.10,000/- 5 months' S.I.

All the sentences were ordered to run concurrently.

Learned Public Prosecutor has chosen not to file reply to the application for suspension of sentences and proposes to argue the matter orally.

We have heard and considered the submissions advanced by Shri Vineet Jain and learned Public Prosecutor. Perused the impugned judgment as well as the record.

The appellant was arrested on 3.7.2016 in connection with F.I.R. No.123/2016 registered at the Police Station Kelwa, District Rajsamand for the offences under Sections 363, 366, 376(2)(n) of I.P.C. and Section 5(L)/6 of the POCSO Act and since then, he is in custody.

Shri Vineet Jain, learned counsel representing the appellant contended that the case is of consensual relationship plain and simple between the appellant and the so-called victim Mst.D (P.W.2). He took the Court through the statement of Mst.D and contended that she and the appellant were on close terms with each other since long. She herself collected her laptop, clothes, bank passbook etc. and accompanied the appellant on a bike and went to a hotel where, physical relations were established between them. Shri Jain submitted that the prosecution has fabricated/concealed evidence regarding the date of birth of the victim because no document pertaining to her initial admission in the school was proved at the trial. He took the Court through the statement of Jagdish Chandra (P.W.12), teacher of the M.D. Navprabhat Public Sr.Secondary School, Rajsamand where the victim studied in the 10 th and 12th standards. He submitted that other than the scholar register and the marksheet, no document pertaining to the initial admission of the victim in the school was proved. He also took the Court through the statement of P.W.4 Deepak Sharma, father of the victim, who admitted that his daughter Mst.D was admitted in a private school at Dansroli Kankra in the 1st standard. Shri Jain submitted that though the witness claimed that at that time, his daughter was 2½ -3 years old but as per him, it is not possible to concieve that a child of 2½-3 years would be straightaway admitted into the 1 st standard. Shri Jain submitted that Mst.D whould have been 6 years of age at the time of admission into the 1 st standard and if that age is considered to be the reference point, manifestly she was definitely a major person when she eloped with the appellant and established physical relations. He contended that the appellant is in custody for the last more than 4 years. Hearing of the appeal is unlikely in the near future. The appellant has strong grounds so as to assail the impugned judgment. On these grounds, he craved acceptance of the application for suspension of sentences seeking bail for the appellant during pendency of the appeal.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel for the appellant. However, he too does not dispute the fact that the elements of consensual physical relationship between the victim and the appellant are undoubtedly reflected when sworn statement of the victim P.W.2 Mst.D is carefully perused. However, the appellant has been convicted by the trial court because consent by a minor is not relevant. Regarding the age of the victim, the evidence which has been offered by the prosecution, is in the form of statement of her parents viz. P.W.3 Tara Sharma, P.W.4 Deepak Sharma and P.W.12 Jagdish Chandra, who all stated in one voice that the victim's date of birth was 22.1.2001 and that she was about 15 years & 5 months of age on the date of the incident. The documents which were proved on record regarding her age, are in the form of the matriculation marksheet (Ex.P11), the scholar register (Ex.P24) and the birth certificate (Ex.P35). The birth certificate was got prepared on 1.7.2016 and is based on the scholar register entry. The father of the victim conceded in his evidence that she was initially admitted in a school at Dansroli Kankra in the 1st standard. The entry pertaining to the admission of Mst.D in the 1st standard was not produced by the prosecution for reasons best known to it. If the entire evidence of the parents of the victim is perused in reference to the date of birth as recorded in the documents referred to supra, there appears to be a serious discrepancy amongst the two and possibility of the victim being above 18 years of age on the date of the incident, cannot be ruled out.

Any observation by this Court on the merits of the matter may prejudice the final decision of the appeal. The appellant is in custody for the last more than 4 years. Hearing of the appeal is not likely in the near future.

In this background and having regard to the entirety of 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.

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 Additional Special Judge, POCSO Act Cases, Rajsamand in Sessions Case No.40/2018 vide judgment dated 3.12.2018 against the appellant-applicant Rajendra Singh @ Raju Singh 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.40,000/- with two sureties of Rs.20,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 21.8.2020 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

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.

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(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. 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.