[2023/RJJP/011585]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Misc. 3^rd (SOS) Application No. 1329/2021

in

S.B. Criminal Appeal No.13/2020

Ali Khan S/o Zakir, R/o Ward No. 4, Kotwali Mohalla, Nainwa, P.s.

Nainwa, District Bundi (Rajasthan) (At Present Confined In

District Jail Bundi)

----Petitioner

Versus

State Of Rajasthan, Through P.p

----Respondent

For Petitioner(s)

:

Mr. Naman Yadav with Mr. Piyush

Sharma

For Respondent(s)

:

Mr. Imran Khan, PP

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

19/05/2023

Instant third application for suspension of sentence is filed

on behalf of appellant in pending appeal which is preferred

aggrieved of order of conviction and sentence dated 13.12.2019 in

Sessions Case No.213/2018 passed by learned Special Judge

(POCSO Act, Cases) No.2, Bundi whereby appellant was convicted

from charge under Sections 363, 366A IPC and Section 4 R/w 18

of POCSO Act.

Learned counsel for the appellant submitted that co-

appellant was released on bail vide order dated 14.02.2020 and

out of both applications filed on previous occasion for suspension

of sentence first was decided on 14.02.2020 as withdrawn and

secondly on 22.02.2021 on merits dismissed. He submitted that

appellant was falsely implicated and victim does not supported the

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prosecution story. He further submitted that as per medical report

hymen was intact and victim was not subjected to penetrative

sexual assault. He further submitted that till now appellant has

already undergone more than 50% of awarded sentence,

therefore, he prayed for release of appellant on bail. To fortify his

submissions he cited judgments of Hon’ble Supreme Court in the

case of Salim Javed Vs. State of Rajasthan reported in

(2006) 9 SCC 602

and also

judgments of

Mayuresh

Nandkumar Purohit Vs. Kaushik Manna and Anr. reported in

(2018) Cr.L.R. (SC) 251, and also of this court in cases of

Udaipal Vs. State of Rajasthan reported in 2022 SCC OnLine

Raj. 2529, Ratna Ram Vs. State of Rajasthan in S.B.

Criminal Misc. (SOS) Application (Appeal) No.388 of 2020,

Jaswant Singh and Ors. Vs. State of Rajasthan S.B. Criminal

Misc. II (SOS) Application (Appeal) No.493 of 2020, Suresh

Kumar Vs. State of Rajasthan S.B. Criminal Misc. Fourth Bail

Application (Suspension of Sentence) No.337/2020 and

Lakhan Vs. State of Rajasthan in S.B. Criminal Misc. (SOS)

Application No.1118/2021.

Aforesaid contentions were opposed by learned Public

Prosecutor, on the ground that the allegations upon appellant were

proved and the act was committed with a minor victim having age

less than 12 years.

Heard learned counsel for the appellant and learned Public

Prosecutor. Also perused the record and judgments of Hon’ble

Supreme Court and Coordinate Benches of this court.

The allegation upon present appellant is committing rape

with a child victim having age of 9 years. On the basis of narration

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of incident by child victim just after the incident to her mother and

she lodged the FIR. Herein, victim was examined as PW2 and she

had clearly stated that present appellant had removed her

underwear and committed rape with her. Her narration was even

more clear in statement recorded under Section 164 Cr.P.C. Again

subsequent to this act, the entire incident was explained by

mother of victim who was examined as PW1. On record FSL report

was also obtained and no specific defence was pleaded by present

appellant. The application for suspension of sentence was

dismissed on 22.02.2021 on merits wherein it was observed as

under:-

“Victim has deposed about scurrilous and

aberrant activities committed to her by the

accused-appellant. The conduct of the accused-

appellant shows that he was involved in such

type of an activity which is itself a very heinous

and harmful act and mi