High Court dismissed two suspension of sentence applications maintained by a petitioner convicted of sexual assault under IPC 450 and PoCSO. The Court declined to suspend the sentence considering the petitioner's uncle status to the victim and prior jail absconding.
The application for suspension of sentence was dismissed.
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-JD:35702-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 167/2023
Kesa Ram S/o Shri Hamira Ram, Aged About 29 Years, R/o Mundasar, P.s. Shri Balaji, District Nagaur. (At Present Lodged In Central Jail, Ajmer).
----Petitioner
Versus
----Respondents
Connected With
D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 169/2023
Kesha Ram S/o Shri Hameera Ram, Aged About 30 Years, R/o Mundasar Ps Shri Balaji, District Nagaur (Rajasthan) (At Present Lodged In Central Jail, Ajmer)
----Applicant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Applicant(s) : Mr. Deepak Choudhary For Respondent(s) : Mr. R.R. Chapparwal, PP Mr. G.R. Goyal
HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
18/10/2023
[2023:RJ-JD:35702-DB]
[SOSA-167/2023]
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D.B. Cr. Misc. SOSA No. 167/2023
This application for suspension of sentence has been filed on behalf of the appellant-applicant, who has been convicted and sentenced by the trial court as under :-
| Offences U/S | Sentence | Fine | Fine default in sentence |
|---|---|---|---|
| 450 IPC | 10 years’ R.I. | 1,00,000/- | 6 months’ R.I. |
| 5/6 Pocso Act | L.I. | 4,00,000/- | 1 year R.I |
Learned counsel for the appellant-applicant has submitted that the appellant-applicant has falsely been implicated in this case. It is submitted that victim, her grandfather and grandmother have not supported the prosecution story and turned hostile. It is further submitted that the trial court has not taken into the consideration the fact that as per the medical examination report of appellant-applicant (Exhibit/P-11), he has not received any injury on his private part and, therefore, it cannot be said that he had sexually assaulted the victim.
Learned counsel for the appellant-applicant has further submitted that the appellant-applicant is in judicial custody since 17.05.2019 and there is every likelihood that the appeal preferred on behalf of the appellant will not be heard in near future. It is, thus, prayed that the sentences awarded to the appellantapplicant may kindly be suspended.
Per contra, learned Public Prosecutor has opposed the application for suspension of sentence and argued that though, the victim has not supported the prosecution story and turned
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[SOSA-167/2023]
hostile, but she has levelled allegation of sexual assault against appellant-applicant in her statements recorded under Sections 161 and 164 Cr.P.C. and has verified the same in her Court statements. Learned Public Prosecutor has further submitted that from the medical as well as the DNA report, it is clear that the appellant-applicant had sexually assaulted the victim. It is also submitted that the appellant-applicant is the uncle of victim and taking benefit of the fact that the victim was alone in the house, sexually assaulted her.
Learned Public Prosecutor while inviting attention of this Court towards Exhibit/P-5 and Exhibit/P-10, the medical examination report and DNA report of the victim respectively has argued that the prosecution has proved the charges against the appellant-applicant beyond doubt. It is further submitted that the conduct of the appellant-applicant during trial was also objectionable as he absconded from jail from 08.10.2019 and was arrested by the police with sincere efforts on 23.08.2021. Learned Public Prosecutor, therefore, has submitted that there is all possibility that if the sentence awarded to the appellant-applicant by the trial court is suspended, he may be again abscond. It is, thus, prayed that the application for suspension of sentence preferred on behalf of appellant-applicant may be dismissed.
Heard learned counsel for the parties and perused the record.
As per the trial court, the age of the victim was 12 years, 4 months and 16 days at the time of incident. The trial court has
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placed reliance on Exhibit/P-5, the injury report as well as the statements of the doctor, who medically examined the victim.
The trial court, has come to the conclusion, that as per the DNA report, semen was found on the clothes as well as underwear of the victim.
Taking into consideration the above facts, particularly the fact that appellant-applicant being uncle of the victim had sexually assaulted her and taking into consideration the fact that he remained absconded from jail during trial, without expressing any opinion on the merits of the case, we are not inclined to suspend the sentence awarded to the appellant-applicant by the trial court.
In view of the above, this application for suspension of sentence is hereby dismissed.
D.B. Cr. Misc. SoSA No. 169/2023
The appellant-applicant has filed this second application for suspension of sentence, whereas the earlier application for suspension of sentence was pending consideration.
Hence, this application for suspension of sentence is dismissed.
(RAJENDRA PRAKASH SONI),J
(VIJAY BISHNOI),J
86-Anshul/-
2 issues framed by the court
Whether the sentence awarded for sexual assault under IPC 450 and PoCSO Act should be suspended given the appellant's absconding history.
Whether the hostility of prosecution witnesses and lack of injury on the appellant precluded sexual assault given affirmative DNA and medical evidence.
Kesa Ram
State Of Rajasthan
Vijay Bishnoi
Rajendra Prakash Soni
As recorded by the court registry
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