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HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Misc Suspension Of Sentence Application (Appeal)

No. 1044/2023

In

S.B. Criminal Appeal No. 1323/2023

Bhupendra Malav Son Of Hanshraj Malav, Aged About 25 Years,

R/o Opposite Police Station Sultanpur Police Station Sultanpur

District Kota Rural (Presently Confined In Central Jail Kota)

----Petitioner

Versus

State Of Rajasthan, Through Its Public Prosecutor

----Respondent

For Petitioner(s)

:

Mr. Rajesh Ghadwal

Mr. Pushpendra Kumar

Mr. Rajesh Swami

For Respondent(s)

:

Mr. M.S. Saini, PP

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

20/07/2023

The instant application for suspension of sentence is

preferred in pending appeal which was admitted on 29.05.2023

and aggrieved from order of conviction and sentence dated

15.05.2023 in Special Sessions Case 60/2019 passed by learned

Special Judge (POCSO Act Cases) No.3, Kota whereby appellant

was convicted for offence under Section 7/8 and 11(iv)/12 of

POCSO Act and sentenced to undergo simple imprisonment of four

years and three years respectively along with fine.

Learned counsel for appellant submitted that for the incident

of 10.02.2019, FIR was registered on 17.02.2019 and no

explanation was furnished for delay. He further submitted that

initially FIR was registered under Sections 354(A), 506 IPC and

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(2 of 3)

[SOSA-1044/2023]

Section 7/8 and 11/12 of POCSO Act but after improvement in the

statement of prosecutrix, charge-sheet was filed under Section

354(A), 354(D), 376(3) and 376(2)(n) of IPC and Section 5(l)/6,

7/8 and 11/12 of POCSO Act. He further submitted that learned

trial court had acquitted appellant from offence under Section 506,

376(3), 376(2)(n) of IPC and Section 5(l)/6 of POCSO Act. He

further submitted that the statement of prosecutrix is not reliable

and she had improved her version at all point of time. He further

submitted that father of this prosecutrix was examined as PW-1

and he was declared hostile by the prosecution. He further

submitted that no medical evidence was available on record to

establish the fact that any sexual assault was committed by

appellant. At last, he submitted that appellant was on bail during

trial and disposal of appeal will take its own time.

Aforesaid contentions were opposed by learned Public

Prosecutor. He submitted custody certificate and same is taken on

record.

Heard learned counsel for appellant and learned Public

Prosecutor. Perused the record.

A perusal of custody certificate indicated that appellant

remained in custody from 19.02.2019 to 17.10.2019 and

thereafter from date of sentence on 15.05.2023 onwards. The

statement of witnesses as referred during course of argument

were perused from record made available by learned counsel for

appellant. The fact of the matter is victim was examined as PW-2

before learned trial court and the father of victim was examined as

PW-1 whereas mother as PW-3.

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We have considered the entire depositions. At this stage, it is

not possible to opine on merits. Having considered the entirety of

matter and without expressing any opinion on merits, it is a fit

case wherein appellant can be released on bail. Therefore

application under Section 389(1) Cr.P.C. is allowed and sentence of

appellant accused-Bhupendra Malav Son Of Hanshraj Malav 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 22.12.2023 and

whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:-

1. That he/she/they will appear before the trial

Court in the month of January of every year till the

appeal is decided.

2. That if the applicant(s)