Explained that the POCSO Act aims to stop sexual abuse of children. Held that admitting the POCSO offence of 12-year-old victim is not a fit case for bail on suspension of sentence despite appellant's custody period, dismissing the application.
Application for suspension of sentence dismissed; appellant remained in custody.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2023:RJ-JP:15021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Misc. (SOS) Application No. 1374/2022
In
S.B. Criminal Appeal No.2108/2022
Shiv S/o Ganga, Resident Of Kamata Bujurg Police Station Paniyara District Maharajganj Uttarpradesh At Present Tenant House Of Kanwarpal Gurjar Harchandpur, Bhiwadi, Police Station Bhiwadi District Alwar (Raj) (At Present Confined In Central Jail, Alwar)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Kapil Gupta For Respondent(s) : Mr. Riyasat Ali, PP
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
20/07/2023
Instant application for suspension of sentence is preferred aggrieved from order of conviction and sentence dated 16.09.2022 in Sessions Case No.57/2020 passed by learned Special Judge (POCSO Act, Cases) No.1, Alwar whereby appellant was convicted for charge under Sections 363, 366, 376AB IPC and Section 5(m)/6 POCSO Act and Section 3(2)(va) SC/ST (POA) Act.
Learned counsel for the appellant while relying upon grounds of appeal have submitted that complainant lodged (Ex.P4) report wherein no description of incident was mentioned. He further submitted that after FIR victim was medically examined and report Ex.P5 was prepared by PW5 Doctor Priyanka Sharma wherein no
[2023:RJ-JP:15021]
[SOSA-1374/2022]
(2 of 3)
medical evidence was found. He further submitted that in Ex.P4 name of PW2 was mentioned as eye witness but PW2 turned hostile before the court and did not corroborate the story of prosecution. He further submitted that even complainant PW3 turned hostile and he admitted to submit the report without reading. He referred the statement recorded under Section 164 Cr.P.C. as Ex.P1 and also recorded as PW1 before the court to submit that no such incident was corroborated by the prosecutrix. At last he submitted that appellant remained in jail for entire trial and his period of incarceration is more than 3 years and 6 months and disposal of appeal will take its own time, therefore, he is entitled to be released on bail.
Aforesaid contentions were opposed by learned Public Prosecutor.
Heard learned counsel for the appellant and learned Public Prosecutor. Perused the record.
As per custody certificate submitted by learned Public Prosecutor, appellant has already remained in custody for more than 3 years and 6 months and even during trial he remained in custody.
PW3 informant-complainant who is father of victim has turned hostile. Similarly, the person named as “first to know” the incident as named in Ex.P4 was examined as PW2 and he also turned hostile. In report Ex.P4, the name of victim, name of present appellant and also the fact that sexual assault was committed with victim were also mentioned. When we look at statement under Section 164 Cr.P.C. Ex.P1 then the victim was examined on 03.03.2020 wherein she specifically referred certain
[2023:RJ-JP:15021]
[SOSA-1374/2022]
(3 of 3)
act and this victim was examined as PW1 before the trial court. Therein, initially she admitted that she was kissed by appellant. Thereafter, she admitted that her cloths were removed firstly she stated that appellant had inserted his finger in her mouth then she admitted insertion of private part of accused in her mouth. The sequence of answer given by PW1 clearly indicated that victim was 12 years of age and examined by a system in question answer format. Moreover, when asked description about the incident then at one point of time she just kept mum and did not answered the question.
In this case, one of the act which is quite noticeable is that admission of PW2 to enter into compromise with appellant and also the father of victim turned hostile but victim remained firm and even she could not speak about the entire incident.
Having considered the entirety of evidence, I am of considered view that in case like this, we all are concerned about sexual abuse of children by perpetrators and this is a fit case to opine that just to stop abuse of children from sexual exploitation etc. the POCSO was enacted by the Parliament of India.
Having considered aforesaid, I am of considered view that this is a fit case wherein no leniency whatsoever can be adopted in favour of perpetrator like this.
In view of aforesaid, present case is not a fit case wherein appellant be enlarged on bail. Hence, application for suspension of sentence is hereby dismissed.
(ASHOK KUMAR JAIN),J
Arun/32
3 issues framed by the court
Whether an appellant convicted of POCSO offences and detained for over 3 years and 6 months is entitled to bail on suspension of sentence.
Whether the hostile nature of witnesses and the victim's statement justify refusing bail in a child sexual assault case.
Whether the statutory scheme of the POCSO Act precludes leniency in cases of sexual abuse of children.
6 provisions across 4 enactments
Shiv
State Of Rajasthan
Ashok Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
