The High Court of Rajasthan considered a second application for suspension of sentence filed by a minor appellant convicted under POCSO and IPC. The High Court dismissed the application for bail, emphasizing the victim's age being under 14 despite medical and procedural disputes raised by the appellant.
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.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Misc. Second (SOS) Application No. 611/2023
In
S.B. Criminal Appeal No.1743/2022
Govind @ Achal Vijay S/o Shri Poonamchand Vijay Mhajan, Aged About 18 Years, R/o H.n. F.f. 97, Taigor Nagar, P.s. R.k. Puram Kota Raj (At Present Confined At Central Jail Kota)
----Appellant
Versus
State Of Rajasthan, Through P.p
----Respondent
For Petitioner(s) : Mr. Abdul Kalam Khan For Respondent(s) : Mr. Riyasat Ali, PP
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
20/07/2023
Instant second application for suspension of sentence is preferred in pending appeal filed aggrieved from order of conviction and sentence dated 26.08.2022 in Special Sessions Case No.116/2021 passed by learned Special Judge (POCSO Act, Cases) No.1, Kota whereby appellant was convicted for charge under Section 3/4 POCSO Act and Section 376(3) IPC and further sentenced to undergo rigorous imprisonment of 20 years along with fine of ₹10,000/-. First application for suspension of sentence was dismissed as withdrawn on 04.01.2023.
Learned counsel for the appellant submitted that on a false and fabricated facts appellant was implicated by the complainant for taking revenge of dispute during construction of house of
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father of accused. He submitted that for alleged incident of 24.12.2020, the report was lodged on 29.12.2020 and not a single medical evidence to corroborate the allegation of prosecutrix was produced by the prosecution to establish alleged act of appellant. He further submitted that prosecutrix was examined as PW1 and her admission in cross-examination clearly indicated that she was in regular with present appellant through mobile and social media. He further submitted that the allegation of entering through roof in the house of complainant was negated from evidence collected by Investigating Agency. He further submitted that prosecutrix and appellant both are minors but the admission of prosecutrix clearly indicated that she was in communication with present appellant and her friendship was not liked by her parents. He further referred the statement of PW2 to submit that text message of her daughter were not handed over to police and she was not aware regarding meeting between prosecutrix, appellant and cousin of prosecutrix. He further referred the statement of PW6 to submit that only on the basis of animosity, between complainant and appellant, appellant was framed by complainant on false charges. He referred the statement of PW8 and medical report Ex.P3 to submit that there was no injury mark on body of victim. He also referred the cross-examination of PW12 Investigating Officer to submit that call details and other required material were not collected by Investigating Officer during investigation. He further submitted that appellant requires urgent medical intervention, so on ground of age and illness, as well, he is entitled to be released on bail.
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Aforesaid contentions were opposed by learned Public Prosecutor, on the ground that victim was less than 14 years of age and she was raped by present appellant.
Heard learned counsel for the appellant and learned Public Prosecutor. Perused the record.
A perusal of record indicated that the date of birth of victim was 22.05.2007 as per PW7 and learned trial court has relied upon this evidence to conclude that victim was minor on date of incident. The age of appellant was also admitted by prosecution and date of birth of appellant is 17.08.2003 and he was CCL on date of indicent. Presently appellant is in safe place (reformatory) at Bharatpur by the order of learned trial court.
Record further indicated that appellant was released on bail during trial by order dated 18.05.2021 in S.B. Criminal Revision Petition No.149/2021 passed by a Coordinate Bench of this court, in view of provision under Section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2015.
We have considered the evidence of witnesses as referred during arguments by learned counsel for the appellant and also considered the documents available on record. Also perused the report of Probation Officer, psychologist and medical report of appellant. The medical board report regarding psycho diagnostic test for assisting in determination of the physical and mental ability to commit a crime under Section 15 of JJ Act indicate that appellant was able to understand consequence of his act. The fact of the matter is at this stage it is not possible for the court to opine on merits on contradictions as referred during arguments but the age of victim in present case is less than 14 years. As
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regard to admission of PW1 regarding her friendship with appellant and meetings with appellant, even in presence of her cousin along with delay in reportive the matter including post incidents conduct, we have gone through each and every aspect of aforesaid details. The fact that both are neighbours and in active communication with each other and their parents were unaware about the same, but it is a case of penetrative sexual assault so have to consider in light of law.
Herein, both appellant and victim were minors but on date of incident and very well known to each other victim was less than 14 years of age on date of incident though the issues as highlighted and pointed out by learned counsel for the appellant requires consideration on merits but at this stage we cannot opine on merits of the case. Herein this case, a prayer is made on medical grounds but the document indicates that the surgery is elective one. Present application for suspension of sentence and not for interim bail on ground of medical.
In view of the fact that the age of victim was less than 14 years, therefore, I do not deem it fit to allow second application for suspension of sentence to release present appellant on bail.
Accordingly, second application for suspension of sentence is hereby dismissed.
(ASHOK KUMAR JAIN),J
Arun/35
2 issues framed by the court
Whether second application for suspension of sentence should be allowed given that the victim was less than 14 years of age at the time of the incident.
Whether medical grounds and the age of a minor convicted under POCSO Act justify suspension of sentence for immediate release on bail.
4 provisions across 4 enactments
Govind @ Achal Vijay S/o Shri Poonamchand Vijay Mhajan
State Of Rajasthan
Ashok Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
