Jagdish S/O Andaram Vs State of Rajasthan

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[2025:RJ-JP:21904]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1420/2023

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In

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S.B. Criminal Appeal No. 2132/2023

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Jagdish S/o Andaram, Aged About 25 Years, Resident Of Village Prathvipura, Police Station Jetaram District Pali, (Raj) (At Present Confined In Central Jail, Ajmer) (Raj)

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----Petitioner

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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 Petitioner(s)	: Mr. Mr.	Rajneesh Gupta with Shiv Kumar Sharma
For Respondent(s)	: Mr.	Vijay Singh Yadav, PP
	Mr.	Mukesh Kumar Goyal

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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23/05/2025

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The instant application for suspension of sentence is preferred by appellant- Jagdish S/o Andaram in pending appeal filed aggrieved from order of conviction and sentence dated 07.06.2023 in Sessions Case No.19/2022 passed by learned Special Judge (POCSO Act Cases) No.2, Ajmer whereby appellant was convicted for offence under Sections 363, 366, 344, 376, 376(2)(n) IPC and 3/4, 5(l)/6 of POCSO Act and sentenced accordingly.

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An application No.01/2024 is also filed by appellant for taking on record the compromise between complainant and victim with accused.

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Learned counsel for the appellant submitted that appellant is an innocent person and he was falsely implicated by complainant. He further submitted that report Ex.P-15 was registered by PW-6 brother of victim on 04.07.2021 for elopement of victim on 02.07.2021 and same was registered under Sections 363 and 366 IPC. He further submitted that after elopement on 02.07.2021, this victim was recovered on 23.09.2021 from village Prithvipura, P.S. Jetaran Dist. Pali. He further submitted that this clearly indicated that this victim has remained out of her home for a period more than 2 and a half months. He also submitted that after recovery the victim was medically examined by Pw-5 Dr. Neha and report Ex.P-1 indicated that no injuries were found on body and genital of victim. He further submitted that the prosecution has examined PW-2 Vinod Kumar and Ex.P2 and P3 to show that date of birth of victim was 10.07.2005. He further submitted that in the cross-examination of victim, PW-4, it was admitted that she has prepared Aadhar Card Ex.D-3 on basis of her biometrics and details. He also referred statement of mother PW-7 and submitted that mother has turned hostile and she has not mentioned age of victim. He also referred cross-examination of PW-4 and submitted that victim has travelled in public transport and at a public place but she has not raised any alarm to seek assistance of any member of public. He also submitted that victim has de-boarded the bus and she came in contact with sevral persons and not narrated any ordeal or forcible rape by appellant. He also referred statement of PW-19 Ram Chandra (IO) and PW22 Preeti Ratnu (IO) and submitted that victim herself left her home and she approached appellant. He further submitted that

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PW-19 has not procured any rent agreement of flat at Hyderabad wherein victim has allegedly stayed with appellant. He further submitted that the evidence clearly suggest that victim herself left her house and she forced appellant to accompany her as she was annoyed from her family problems. He further referred FSL report Ex.C1 and submitted that this FSL report was exhibited by learned trial court after concluding arguments and examination of accused under Section 313 Cr.P.C. He also submitted that appellant was not afforded an opportunity to cross-examine about said report. He also pointed out discrepancies in collection of sample and delay in deposition of sample to FSL. At last, he submitted that appellant is in custody for last more than 3 years and 11 months and disposal of appeal will take its own time.

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Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. Learned counsel for complainant submitted that victim and complainant have no objection in case bail is granted to appellant. He endorsed the compromise between the parties.

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Heard learned counsel for parties and learned Public Prosecutor. Perused the record. 5. On the basis of report Ex.P-15 dated 04.07.2021 about elopement of victim of 02.07.2021, FIR No.90/2021 under Sections 363 and 366 IPC was registered at P.S. Pisangan, Ajmer and victim was recovered on 23.09.2021 and she was medical examined and her statement under Sections 161 and 164 Cr.P.C. were recorded. After investigation, a charge-sheet has been filed against appellant. After framing charge, 22 witnesses were examined by prosecution and 32 documents were exhibited by

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prosecution. The accused was examined under Section 313 Cr.p.C. and he has not submitted any defence evidence but exhibited three documents. The court has exhibited ExC1 FSL/DNA report. The appellant was convicted and sentenced by trial court.

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The trial court on the basis of evidence of PW-2 Vinod Kumar and ExP-2 to Ex.P7 has determined the age of victim as 10.07.2005. The Aadhar Card entry either 10.07.2005 or 10.07.2002 is immaterial for determination of age as same is not authorized a document under Section 94 of JJ Act. Any ground about the age can be considered at the time of final adjudication. 7. We have considered statement of PW-6 brother of victim and IO PW-19 and PW-22 and co-related them with statement of PW-4 victim. The mother of victim PW-7 has turned hostile. The victim remained with appellant for more than 2 and a half months away from her home after elopement on 02.07.2021. Till recovery by police from P.S. Jetaran, Dist. Pali, victim has not filed any complaint about her kidnapping or rape. PW-6 Dr. Neha has not found any injury on genital and medical report clearly indicated that victim was normal. FSL report Ex.C1 was exhibited as court document but after recording statement of accused under Section 313 Cr.P.C. on 08.05.2023. The supplementary statement was also recorded on 02.06.2023 and after recording supplementary statement the accused was not afforded any opportunity to led any defence evidence. The order-sheet indicated that on 02.06.2023 the trial court has reheard the arguments which were concluded on 05.05.2023 and matter was fixed for pronouncement of judgment of 24.05.2023. Learned counsel for appellant is free

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to raise this ground at the time of final adjudication and we are also concerned about the process adopted by learned trial court.

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The appellant remained in custody from his arrest and his period of custody is 3 years 10 months 24 days. The age of victim is more than 16 years but less than 18 years. The complainant brother of victim and victim herself has entered into compromise with accused on 15.10.2024. The compromise is impermissible in cases of POCSO Act though quashing of proceedings was considered by larger Bench of Hon’ble Supreme Court in case of Gian Singh Vs. State of Punjab And Another (2012) 10 SCC 303.

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We are only considering SOS application and at this stage, it is not possible for us to express any opinion on merits of the case but having considered the entirety of facts and circumstances of the case, I am of considered view that this is a fit case to enlarge appellant on bail.

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Therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellant can be enlarged on bail. The application under Section 430(1) B.N.S.S. is allowed and sentence of appellant accused-- Jagdish S/o Andaram 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 08.09.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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After release of appellant on bail, he will not

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indulge in any criminal activity and if it is found

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that he is involved in any criminal activity, the order shall be recalled.

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That he 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 will give in writing his changed address to the trial Court as well as to the counsel in the High Court.

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Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court.

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Misc. Application stands disposed of.

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A copy of this order be sent to learned trial court through E-

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mail.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /04

Jagdish S/O Andaram v. State of Rajasthan

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