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HIGH COURT OF JUDICATURE FOR RAJASTHAN - JAIPUR BEN
HEERA LAL S/O RAM KUNWAR GURJAR – Appellant
Versus
STATE OF RAJASTHAN – Respondent
SOSA 1367/2022
POCSO ACT - CONSENSUAL RELATIONSHIP - SUSPENSION OF SENTENCE - [The court suspended the sentence of an appellant convicted under POCSO Act, considering the possibility of a consensual relationship between the appellant and the prosecutrix, and the presence of defects in the prosecution's evidence regarding the prosecutrix's age.]
Fact of the Case:
The appellant was convicted under sections 363, 366, and 376(3) of the IPC and 5(L)/6 of the POCSO Act for establishing a consensual relationship with a minor. The appellant challenged the conviction, arguing that the prosecutrix was a major at the time of the relationship and that the prosecution's evidence regarding her age was flawed.
Finding of the Court:
The court found that the evidence presented by the prosecution regarding the prosecutrix's age was not conclusive and that there were indications of a consensual relationship between the appellant and the prosecutrix. The court also noted that the appellant had no prior criminal record and had been in custody for a significant period.
Issues: 1. Whether the prosecutrix was a minor at the time of the relationship. 2. Whether the relationship between the appellant and the prosecutrix was consensual. 3. Whether the appellant should be granted suspension of sentence.
Ratio Decidendi: The court held that the prosecution had failed to establish beyond reasonable doubt that the prosecutrix was a minor at the time of the relationship. The court also found that there was evidence to suggest that the relationship was consensual. Considering these factors, the court concluded that the appellant was entitled to suspension of sentence.
Final Decision: The court suspended the appellant's sentence and ordered his release on bail.
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Cr. Misc. Suspension of Sentence Application No.1367/2022
IN
S.B. Criminal Appeal No. 767/2022
Heera Lal S/o Ram Kunwar Gurjar, Aged About 45 Years,
Resident Of Aakoda Police Station Dablana, District Bundi (Raj)
(At Present Confined In District Jail, Bundi (Raj)
----Appellant
Versus
State Of Rajasthan, Through P.p
----Respondent
For Appellant(s)
:
Mr. Praveen Kumar Jain
For Respondent(s)
:
Mr. Mangal Singh Saini, P.P.,
Mr. Amit Dadhich
HON'BLE MR. JUSTICE FARJAND ALI
Order
04/01/2023
Heard learned counsel for the accused-appellant and learned
Public Prosecutor on the application for suspension of sentence
and perused the judgment impugned dated 11.04.2022 passed by
Special Judge Protection of Children from Sexual Offences Act,
2012 and Commissions for Protection of Child Right Act, 2005
No.2 Bundi (Raj.) in Sessions Case No.25/2021, whereby the
accused-appellant has been convicted for the offences punishable
under sections 363, 366 and 376(3) of I.P.C and 5(L)/6 of POCSO
Act, 2012 and has been sentenced with maximum of 20 years
rigorous imprisonment along with fine of Rs. 1,10,000/-.
Learned counsel for the accused-appellant submits that it
was a case of consensual relationship between two majors and the
fact has been brought forth in the evidence as the prosecutrix
(2 of 4)
[SOSA-1367/2022]
herself admitted to the substantive question asked while
examination under Section 161 of the Cr.P.C. that she established
the relationship with the appellant at her own free will. PW-8
Ramgilas, the Investigating Officer, admitted the fact before the
trial Court that when the prosecutrix was examined under Section
161 of the Cr.P.C., she admitted the fact of having consensual
relationship. As far as the question of date of birth is concerned,
learned counsel raises serious objection over the genuineness of
the documents produced by the prosecution to establish the fact
that the prosecutrix was below 18 years of age at the relevant
point of time. He drew attention towards the documents Exhibits
P-9A, P-10A and P-11A a bare perusal of which reveals that clear
interpolation has been made in the school admission form dated
13.07.2009 in the portion A to B. The date of birth 02.03.2003 can
be seen to have been inscribed which was crossed and thereafter,
the new date 09.11.2004 has been inserted in the form. There is
even a clear interpolation on Ex- P10A. In this view of the matter
and as per the availability of other evidence, it cannot be said with
utmost certainty that the prosecutrix was below 18 years of age at
the relevant point of time. Therefore, the application for
suspension of sentence may be granted.
Learned Public Prosecutor vehemently opposes the prayer
made by learned counsel for the accused-appellant.
Considering the overall submissions of the parties and
looking to the totality of facts and circumstances of the case while
refraining from passing any comments on the niceties of the
matter and the defects of the prosecution as the same may put an
adverse effect on hearing of the appeal, this court is of the opinion
(3 of 4)
[SOSA-1367/2022]
that it is a fit case for suspending the sentence awarded to the
accused-appellant.
Accordingly, the application for suspension of sentence filed
under Section 389 Cr.P.C. is allowed and it is ordered that the
sentence passed by the learned Special Judge, Protection of
Children from Sexual Offences Act, 2012 and Commissions for
Protection of Child Right Act, 2005 No.2 Bundi (Raj.) vide
judgment dated 11.04.2022 in Sessions Case No.25/2021 against
the appellant-applicant- Heera Lal S/o Ram Kunwar Gurjar
shall remain suspended till final disposal of the aforesaid appeal
and he shall be released on bail provided he executes a personal
bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/-
each to the satisfacti
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