Allowed

Sandeep Sain S/O Shri Banwari Lal v. State of Rajasthan

Rajasthan HC14 Jul 2023SOSA/845/2023

Case brief

AI extract

What is this about?

The High Court allowed an application for suspension of sentence under Section 389(1) Cr.P.C. while disposing of a criminal appeal. Bail was granted subject to personal bond and sureties despite controversies regarding medical reports and lack of FSL report exhibition in the trial court.

What did the court decide?

Application for suspension of sentence under Section 389(1) Cr.P.C. allowed; sentence suspended; bail granted on personal bond with sureties.

Sandeep Sain S/O Shri Banwari Lal Vs State of… — Criminal Trial and Appeal | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc. (SOS) Application No. 845/2023

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S.B. Criminal Appeal No.1320/2023

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Sandeep Sain S/o Shri Banwari Lal, Aged About 30 Years, Resident Of Jahota Police Station Chomu, District Jaipur (Raj) (At Present Confined In Central Jail, Jaipur)

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----Appellant

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Versus

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State Of Rajasthan, Through P.p

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----Respondent

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For Appellant(s) : Mr. Dhoop Singh Poonia For Respondent(s) : Mr. B.L. Nasuna, Dy.G.A.

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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14/07/2023

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Instant application for suspension of sentence is preferred aggrieved from order of conviction and sentence dated 10.04.2023 in Sessions Case No.48/2021 passed by learned Special Judge (POCSO Act, Cases) No.3, Jaipur Metropolitan-I whereby appellant was convicted for charge under Sections 363, 366A, 376(3) IPC and 3/4 (2) POCSO Act and further sentenced to undergo simple imprisonment of 3 years and 5 years and rigorous imprisonment of 20 years along with fine respectively.

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Learned counsel for the appellant while relying upon grounds of appeal submitted that on the basis of missing report, the matter was registered and after investigation severe charges were added without any basis. He further submitted that there was no

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[SOSA-845/2023]

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(2 of 5)

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allegation of rape either in FIR or in statement under Section 164 Cr.P.C. but when she was examined in court she not only improved her statement but also introduced new facts. He further referred the statement of PW2 Doctor Vishakha to submit that as per her opinion there was no injury and no rape was committed with prosecutrix. He further submitted that remaining two Doctors of medical board were not examined by prosecution during trial. He further submitted that it was duty of prosecution to establish the age of victim and same was not proved beyond reasonable doubt. He submitted that it appears that victim was major on date of incident but learned trial court failed to notice the same. While referring statement of PW1 prosecutrix, he submitted that as per her statement she was kept on railway station which is again a crowded place where she could seek assistance of general public but she never raised the alarm. He further submitted that FSL report was not exhibited by learned trial court and same was not placed for opinion by PW2. He further submitted that no witness of recovery/seizure were examined by prosecution. He submitted that it was duty of prosecution to establish that sample was seized and they were kept in safe custody till examination by FSL but neither seizure was proved nor safe custody was proved. He further submitted that FSL report was required to be exhibited and proved but the trial court without following process even under Section 293 of Cr.P.C. have read aforesaid report against the appellant to secure his conviction. At last he submitted that as per PW2 the prosecutrix was virgin and her hymen was intact, therefore, there was no evidence of penetrative sexual assault. He further submitted that appellant was on bail during trial and

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(3 of 5) [SOSA-845/2023]

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disposal of appeal will take its own time, therefore, he be released on bail.

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Aforesaid contentions were opposed by learned Deputy Government Advocate.

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Heard learned counsel for the appellant and learned Deputy Government Advocate. Also perused the record.

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On the basis of written report of complainant Exh.P18, an FIR No.379/2021 was registered on 12.09.2021 wherein it was reported that victim was missing from last night (11.09.2021). In pursuant to investigation victim was recovered on 14.09.2021 as she was produced by complainant party. She was examined by PW2 with two other members of board and medical report Ex.P4 was prepared. Her statement under Section 164 Cr.P.C. was recorded on 15.09.2021 and exhibited as Ex.P7, present appellant was arrested on 14.09.2021. As per record, the date of birth of victim was 03.07.2006. In the statement under Section 164 Cr.P.C. victim alleged rape by accused at the residence of accused but when victim was examined as PW1 then she alleged forcibly rape by accused at his residence. It was admitted by victim that accused was known to her for last 4 months and she was in communication with him. As per PW2 there was no evidence of penetrative sexual assault as hymen of victim was intact.

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Contrary to above, one FSL report, which was not exhibited by trial court was produced by prosecution wherein from DNA profiling stains detected on underwear of victim were found matching with blood sample of accused. Learned trial court on the basis of aforesaid relied heavily on this report and convicted present appellant.

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[SOSA-845/2023]

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(4 of 5)

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Learned counsel for the appellant relied upon judgment of Hon’ble Supreme Court in the case of Rahul Vs. State of Delhi Ministry of Home Affairs & Anr. (Criminal Appeal No.611/2022) judgment dated 07.11.2022 to submit that collection and preservation, if not properly documented then DNA report will not meet legal and scientific requirements for admissibility in evidence. A copy of order dated 24.05.2022 in S.B. Criminal Misc. Bail Application No.6730/2022 indicated that appellant was released on bail by a Coordinate Bench of this court on the basis of the statement of PW2.

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Considered the entirety of the matter without expressing any opinion on merits at this stage, I am of considered view that this is a fit case wherein bail can be granted, therefore application under Section 389(1) of Cr.P.C. is allowed and sentence of accused-appellant- Sandeep Sain S/o Shri Banwari Lal 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 20.12.2023 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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(5 of 5)

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[SOSA-845/2023]

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Similarly, if the sureties change their address(s), he will give in writing their changed

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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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Arun/23

Sandeep Sain S/O Shri Banwari Lal v. State of Rajasthan

Case brief

What is this about?

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Sandeep Sain S/O Shri Banwari Lal v. State of Rajasthan

Case brief

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