Dismissed
Mukesh S/O Shri Bardhi Lal v. State of Rajasthan
Rajasthan HCSOSA/1286/2020
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JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR…
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JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR…
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1286/2020
In
S.B. Criminal Appeal No. 2676/2019
----Petitioners
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Mr. Bharat Yadav For Respondent(s) : Mr. B.L. Nasuna, Dy.GA
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
14/07/2023
The instant application for suspension of sentence is preferred in pending appeal which was admitted on 09.03.2023 and aggrieved from order of conviction and sentence dated 19.09.2019 in Sessions Case No. 169/2018 passed by learned Special Judge (POCSO Act Cases) No.2, Bundi whereby appellantMukesh S/o Shri Bardhi Lal was convicted for offence under Sections 363 and 376D of IPC and appellant-Kailash S/o Shri Ram Prasad was convicted for offence under Sections 363/120B and 376D of IPC and sentenced accordingly.
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Learned counsel for appellants submitted that as per prosecution story, prosecutrix was travelling with two other girls, at the time of kidnapping but out of which only one was examined by prosecution but other was not. He further submitted that the place of incident from where prosecutrix was kidnapped was crowded from which it is impossible to kidnap anyone. He further submitted that as per prosecutrix PW-1, she raised alarm and made hue and cry but there was no evidence to corroborate this fact as two other girls were with this prosecutrix at the time. He further submitted that as per prosecutrix, she was taken to field and raped there but there was no visible sign of incident, found by police. He further submitted that prosecutrix had stated that she resisted the acts of appellants but no evidence to this effect was led by prosecution. He further submitted that just to settle the score, aforesaid case was registered. He further referred the investigation and submitted that there was no site plan of place of kidnapping. He further referred the cross-examination of PW-6 to submit that if anyone is kidnapped near Chaturbhuja temple then she could be noticed by other persons. He further referred the statements of PW-8 to submit that there was animosity between complainant and accused party. He further referred the statement of PW-9 to submit that no medical evidence was available to prove that rape was committed with victim. He further referred the statement of PW-1 and PW-3 to submit that the story narrated by these two witnesses is highly improbable as there was no chance of kidnapping from crowded place. He further submitted that date of birth of victim was not proved from the record. At last, he submitted that FIR No.135/2016 was registered by Kailash S/o
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Ramprashad against father of victim and in this FIR, police after investigation had filed charge-sheet wherein one of accused Mukesh was a witness for prosecution. He further submitted that appellants had already undergone sentence of more than 7 years, so they are entitled to be released on bail.
Aforesaid contentions were opposed by learned Public Prosecutor. He further submitted custody certificate and same is taken on record.
Heard learned counsel for appellants and learned Public Prosecutor. Perused the record.
On the basis of Ex.P-1, report filed by PW-1, FIR was registered, wherein alleged that both appellants forcibly kidnapped victim and took victim to the field thereafter, both of them committed rape with her. As per this report, two girls were with victim at the time of kidnapping and one of them was examined as PW3 but other was not examined by prosecution. Victim was firstly examined under Section 164 Cr.P.C. and the statement was exhibited as Ex.P-4 wherein also victim corroborated the version of Ex.P-1. The medical which was conducted by PW-4 (Dr. Chandresh Meena) and PW-9 (Dr. D.D. Meena) were exhibited as Ex.P-5 and deposition indicated that there was no sign of injury to conclude about rape.
According to PW-3, she was intimidated by accused but she informed about kidnapping to brother of victim. According to PW1, there is animosity between appellants and family of victim. During investigation, no site plan from where kidnapping took place was said to prepared by IO. As per Ex.D3 a charge-sheet in FIR No. 135/2016 filed under Sections 143, 323 and 341 IPC
[SOSA-1286/2020]
against five persons and one of them was father of victim wherein appellant Mukesh was witness.
After considering the entirety of matter and particularly discrepancies and material contradictions as pointed out by learned counsel for appellant, I am of considered view that these discrepancies and material contradictions can only be considered on merits.
In this case, as per custody certificate, appellants had undergone more than 6 years in custody though victim was minor and appellants were convicted under Section 376D IPC for a period of 20 years. In entirety of facts and circumstances, this is not a fit case wherein appellants can be released on bail.
Accordingly, application for suspension of sentence is dismissed.
Misc. application stands disposed of.
(ASHOK KUMAR JAIN),J
PREETI VALECHA /17
Mukesh S/o Shri Bardhi Lal
Kailash S/o Shri Ram Prasad
State Of Rajasthan
Ashok Kumar Jain
As recorded by the court registry
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