HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Misc Suspension Of Sentence Application No. 871/2023

in

S.B. Criminal Appeal No. 1368/2023

Girraj Banjara S/o Baluram, Aged About 26 Years, R/o Narsinghpura,

Police Station Mothpur, District Baran (Raj) (At Present Confined In

District Jail Baran)

----Petitioner

Versus

State Of Rajasthan, Through The Public Prosecutor

----Respondent

For Petitioner(s)

:

Mr. Mahesh Sharma

For Respondent(s)

:

Mr. S.S. Mahla, PP

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

10/07/2023

This application for suspension of sentence is preferred in

pending appeal which was admitted for hearing on 31.05.2023

filed aggrieved of order of conviction and sentence dated

04.05.2023 in sessions case No. 59/2020 passed by learned

Special Judge, (POCSO Act cases) No.1, Baran whereby the

appellant were convicted under Sections 457, 376(3), 506 of IPC

& Section 3/4 of POCSO Act and further sentenced to undergo

rigorous imprisonment of five years, two years, twenty years

along with fine respectively.

Learned counsel for appellant while referring the statement

of PW-1 prosecutrix submitted that in her statement she admitted

the incident of 03.07.2019 and time was 1:00 a.m. during night

but on 04.07.2019 she visited court campus and deposed in

Sessions Case no. 67/2019 which was registered on earlier

occasion against same appellant. He further referred the

statement of this PW-1 recorded on 04.07.2019 as Ex.D/1 wherein

this prosecutrix turned hostile and denied the fact that Giriraj

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kidnapped her and also committed rape with her. He further

referred the affidavit Ex. D/2, D/3 executed by this PW-1. He

further submitted that this prosecutrix on earlier occasion had

registered a case against present appellant wherein she turned

hostile and as a result of same, appellant was acquitted by the

learned trial court. He further referred the cross-examination of

PW-1 to submit that the incident of 03.07.2019 appears to be

improbable as at that particular time of incident door was opened

and other family members were there in the house. He further

submitted that the father of PW-1 was examined as PW-2 but

turned hostile and also admitted that on earlier occasion his

daughter ran away with present appellant. He further submitted

that the date of birth of prosecutrix was not proved as per law and

the deposition of PW-7 is not reliable. He further cited overwriting

in Ex. P/18 and Ex. P/19 to submit that the date of birth of

prosecutrix was not proved as these documents are fabricated

documents. He further submitted that the appellant was on bail

during trial and did not misuse the liberty granted to him. At last,

he submitted that the learned trial court without any proper

reason has arrived at a conclusion of conviction, though there was

no ground to convict present appellant.

Aforesaid contentions were opposed by learned Public

Prosecutor. Learned Public Prosecutor submitted custody

certificate and same is taken on record.

Heard learned counsel for appellant and learned Public

Prosecutor and perused the record.

As per PW-1 the incident was of night of 03.07.2019 and

04.07.2019 she visited court campus at Baran but deposed in old

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case. The report Ex. P/1 submitted by this PW-1 clearly indicated

that on previous occasion a case was also registered by her. The

deposition of victim in previous case was exhibited as Ex.D/1

before the trial court wherein on 04.07.2019 she turned hostile

and did not depose in favour of prosecution. Further, few more

documents were exhibited in defence and at last, the sessions

case no. 67/2019 wherein deposition was made on 04.07.2019

present appellant was acquitted from charge under Sections 363,

366, 376(3) of IPC and 5/6 of POCSO Act on 08.04.2022. On

record, one of the exhibit