Allowed

Bhupendra Malav Son of Hanshraj Malav v. State of Rajasthan

Rajasthan HC20 Jul 2023SOSA/1044/2023

Case brief

AI extract

What is this about?

Single judge allowed suspension of sentence application under Section 389 Cr.P.C. while special appeal was pending. Appellant convicted under POCSO Act; court held him a fit case for bail on personal bond during appeal pendency.

What did the court decide?

Application for suspension of sentence allowed; sentence suspended till disposal of appeal on conditions including execution of personal bond with two sureties.

Bhupendra Malav Son of Hanshraj Malav Vs State… — Criminal Trial and Appeal | Rajasthan HC (2023)

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[2023:RJ-JP:14845]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1044/2023

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S.B. Criminal Appeal No. 1323/2023

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Bhupendra Malav Son Of Hanshraj Malav, Aged About 25 Years, R/o Opposite Police Station Sultanpur Police Station Sultanpur District Kota Rural (Presently Confined In Central Jail Kota)

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----Petitioner

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Versus

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State Of Rajasthan, Through Its Public Prosecutor

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----Respondent

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For Petitioner(s)	: Mr. Rajesh Ghadwal
	Mr. Pushpendra Kumar
	Mr. Rajesh Swami
For Respondent(s)	: Mr. M.S. Saini, PP

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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20/07/2023

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The instant application for suspension of sentence is preferred in pending appeal which was admitted on 29.05.2023 and aggrieved from order of conviction and sentence dated 15.05.2023 in Special Sessions Case 60/2019 passed by learned Special Judge (POCSO Act Cases) No.3, Kota whereby appellant was convicted for offence under Section 7/8 and 11(iv)/12 of POCSO Act and sentenced to undergo simple imprisonment of four years and three years respectively along with fine.

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Learned counsel for appellant submitted that for the incident of 10.02.2019, FIR was registered on 17.02.2019 and no explanation was furnished for delay. He further submitted that initially FIR was registered under Sections 354(A), 506 IPC and

[2023:RJ-JP:14845]

[SOSA-1044/2023]

(2 of 3)

Section 7/8 and 11/12 of POCSO Act but after improvement in the statement of prosecutrix, charge-sheet was filed under Section 354(A), 354(D), 376(3) and 376(2)(n) of IPC and Section 5(l)/6, 7/8 and 11/12 of POCSO Act. He further submitted that learned trial court had acquitted appellant from offence under Section 506, 376(3), 376(2)(n) of IPC and Section 5(l)/6 of POCSO Act. He further submitted that the statement of prosecutrix is not reliable and she had improved her version at all point of time. He further submitted that father of this prosecutrix was examined as PW-1 and he was declared hostile by the prosecution. He further submitted that no medical evidence was available on record to establish the fact that any sexual assault was committed by appellant. At last, he submitted that appellant was on bail during trial and disposal of appeal will take its own time.

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Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record.

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Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.

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A perusal of custody certificate indicated that appellant remained in custody from 19.02.2019 to 17.10.2019 and thereafter from date of sentence on 15.05.2023 onwards. The statement of witnesses as referred during course of argument were perused from record made available by learned counsel for appellant. The fact of the matter is victim was examined as PW-2 before learned trial court and the father of victim was examined as PW-1 whereas mother as PW-3.

(3 of 3)

[2023:RJ-JP:14845]

[SOSA-1044/2023]

We have considered the entire depositions. At this stage, it is not possible to opine on merits. Having considered the entirety of matter and without expressing any opinion on merits, it is a fit case wherein appellant can be released on bail. Therefore application under Section 389(1) Cr.P.C. is allowed and sentence of appellant accused- Bhupendra Malav Son Of Hanshraj Malav is suspended till disposal of appeal with the condition that he would 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 22.12.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

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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.

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Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court.

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Misc. Application stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA/44

Bhupendra Malav Son of Hanshraj Malav v. State of Rajasthan

Case brief

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Bhupendra Malav Son of Hanshraj Malav v. State of Rajasthan

Case brief

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