The court dismissed the application for suspension of sentence against a conviction under Sections 363 and 366-A of the IPC and Sections 5/6 of the POCSO Act, holding that the documentary evidence established the prosecutrix was below eighteen years.
Application for suspension of sentence dismissed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 267/2023
IN
S.B. Criminal Appeal No.208/2023
Mahendra Sharma S/o Shankar Lal, Aged About 25 Years, R/o Gaon Kushtala Thana Sadar Sawaimadhopur At Present M.b.c. Let Bhatta Gaon Ramsinghpura Thana Kanota Jaipur (At Present Confined In Central Jail Sevar Bharatpur)
----Accused-Appellant
Versus
State of Rajasthan
----Respondent
For Petitioner(s) : Mr. Vijendra Yadav For Respondent(s) : Mr. Deshraj Gosingha, PP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
29/01/2024
This Criminal Misc. Suspension Of Sentence Application is preferred against the judgment dated 22.10.2021 passed by the learned Special Court POCSO Act, 2012, No.2 Jaipur Metropolitan-I, Jaipur in Sessions Case No.09/2019 (03/2019), whereby, the accused-appellant was convicted for the offences as under:-
| Offence Under Section |
Imprisonment | Fine | Sentence in default of fine |
|---|---|---|---|
| 363 of I.P.C. | One year’s R.I. | Rs.5,000/- | Fifteen days’ S.I. |
| 366-A of I.P.C. | Four years’ R.I. | Rs.10,000/- | One month’s S.I. |
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[2024:RJ-JP:4638] (2 of 4) [SOSA-267/2023] 5/6 of POCSO Act Twenty years’ Rs.1,00,000/One year’s R.I. S.I.
Learned counsel for the accused-appellant submits that the accused-appellant has wrongly convicted under Sections 363 and 366-A of I.P.C. and under Section 5/6 of POCSO Act. He further submits that prosecution has failed to prove the fact that prosecutrix at the time of alleged commission of sexual offence was below eighteen years.
Learned counsel for the accused-appellant submits that evidence of PW-19 Rambharosi Meena cannot be relied upon as he himself in his cross-examination has stated that Ex.-P/18A is without any seal and verification and was taken from the mobile. It is also stated by the witness that in Ex.-P/18A there is interpolation of dates at Ex.-E/2F portion.
Learned counsel for the accused-appellant submits that PW-1 in her statement (Ex.-D/1) before the police indicated her age twenty years. He further submits that no medical examination of prosecutrix was conducted by the Investigating Officer. The Investigating Officer did not obtain the Birth Certificate of the prosecutrix of Class-1. The SR register is of Class-2, therefore, it cannot be said that at the time of commission of alleged offence, age of the prosecutrix was below eighteen years.
Learned counsel for the accused-appellant further submits that there is contradiction in the statement of prosecutrix herself in the statement rendered before the Court and in the statement given to the concerned Investigating Officer. The accusedappellant is in custody from last five years and nine months
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approximately, so also the decision of the appeal may take considerable time, therefore, sentence awarded to the accusedappellant may be suspended during the pendency of the appeal.
Learned Public Prosecutor vehemently opposes the suspension of sentence application and submits that learned trial court after appreciating the entire evidence on record concluded that at the time of commission of offence, the prosecutrix was below eighteen years. The learned trial court has rightly appreciated the evidence of PW-19 Rambharosi Meena regarding age of the prosecutrix. Ex.-P/16 is certification based upon the scholar register. Ex.-P/16 and Ex.-P/18 were duly proved before the concerned trial court. As per Ex.-P/16 and Ex.-P/18, the age of the prosecutrix was 01.02.2001. Therefore, at the time of incident i.e. 26.08.2018, the age of the prosecutrix was below eighteen years. He further submits that the version of the prosecutrix along with FSL report and pregnancy report indicates that accusedappellant committed rape with the prosecutrix.
Learned Public Prosecutor further submits that accusedappellant has failed to rebut the documentary evidences regarding age of the prosecutrix. There is no explanation with regard to FSL report and pregnancy report, therefore, learned trial court has rightly convicted and sentenced the accused-appellant under Sections 363 and 366-A of I.P.C. and under Section 5/6 of POCSO Act, therefore, application for suspending the sentence of accusedappellant may be dismissed.
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Heard learned counsel for the accused-appellant as well as learned Public Prosecutor on the application for suspension of sentence and perused the material available on record.
After perusing the record of the learned trial court, it is evident from the documentary evidence Ex.-P/16 and Ex.-P/18 that at the time of commission of alleged crime, the age of the prosecutrix was below eighteen years. There is no material available on the record to rebut the documentary evidence put forth by the prosecution. The learned trial court while arriving to the conclusion regarding age of the prosecutrix at para 22 to 23 of the judgment has discussed the defence raised by the accusedappellant. The FSL report as well as the pregnancy report corroborate version of PW-1 prosecutrix.
Therefore, considering the gravity of the offence, I am not inclined to allow the suspension of setence application of the accused-appellant.
Accordingly, the suspension of sentence application filed by the accused-appellant is dismissed.
(PRAVEER BHATNAGAR),J
45-SURAJ KUMAR
3 issues framed by the court
Whether the prosecution failed to prove the age of the prosecutrix was below eighteen years at the time of the offence?
Whether the conviction for offences under IPC Sections 363, 366-A and POCSO Act was justified based on available evidence?
Whether the sentence of the accused-appellant should be suspended during the pendency of the appeal?
3 provisions across 2 enactments
Mahendra Sharma
State of Rajasthan
Praveer Bhatnagar
As recorded by the court registry
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