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Sampat @ Sandeep vs State on 12 July, 2021

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 842/2020

Sampat @ Sandeep S/o Sh. Durga Shanker Sharma, Aged About
29 Years, R/o Adarsh Vihar, Gokul Vihar, Police Station Kotwali,
Bhilwara. (At Present Lodged At Central Jail, Ajmer).

—-Petitioner
Versus
State, Through Pp
—-Respondent

For Petitioner(s) : Mr. N.L. Joshi
Ms. Kirti Pareek
For Respondent(s) : Mr. Farzand Ali GA-cum-AAG
Mr. R.R. Chhaparwal, PP

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

12/07/2021

The appellant-applicant has been convicted and sentenced as

below vide judgment dated 07.11.2020 passed by the learned

Special Judge, POCSO Act Cases No.1, Bhilwara in Sessions Case

No.08/2020:-

Offences for which Sentence awarded
convicted

Under Section 5 (m)/6 of the Life imprisonment along with fine of
POCSO Act Rs.20,000/- in default 4 months
rigorous imprisonment.

Under Section 377 IPC Life imprisonment along with fine of
Rs.5,000/- in default 3 months rigorous
imprisonment.

(Downloaded on 13/07/2021 at 08:48:37 PM)

(2 of 3) [SOSA-842/2020]

He has approached this Court by application under Section

389 of the Cr.P.C. seeking suspension of sentences awarded to him

by the trial court.

Learned counsel Shri Joshi representing the appellant

vehemently and fervently urged that the entire prosecution case is

false and fabricated. The evidence of the complainant PW-2 Shri

Arvind Kumar Parashar and the victim PW-3 Mst.’A’ is totally

unreliable. As a matter of fact, there was a dispute between the

two families over disposal of waste material and that is why, the

appellant has been falsely implicated in this case. He further urged

that even if, the evidence of the victim is accepted to be true on

the face of the record, neither the offences under Sections 376 A,

B and 377 of the IPC nor those under Sections 5 and 6 of the

POCSO Act are made out against the appellant. He thus, urges

that the appellant deserves indulgence of bail during the pendency

of the appeal.

Shri Farzand Ali, learned Additional Advocate General and

Shri R.R. Chhaparwal, learned Public Prosecutor vehemently and

fervently opposed the submissions of appellant-applicant’s

counsel. They pointed out that the child victim, who was aged

about 5 years at the time of the incident, categorically stated in

her evidence that the appellant gave her an allurement that he

would give her milk and then touched his private parts to the lips

of the child. Shri Farzand Ali, learned AAG urged that the act of

the appellant is squarely covered by the definition of penetrative

sexual assault as provided under Section 3 (d) of the POCSO Act.

Minimum sentence for the said offence is 7 years and may extend

to life imprisonment. He urges that the appellant is man of

perverted character. He has committed the heinous act of

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(3 of 3) [SOSA-842/2020]

penetrative sexual assault on an innocent child below 12 years,

which is an offence punishable under Section 4 of the POCSO Act

and so also under Section 5 (m) of the POCSO Act. He thus,

craves dismissal of the application for suspension of sentences.

We have considered the submissions advanced at the Bar

and have gone through the impugned judgment as well as the

record. There is a categoric allegation in the FIR (EX.P/5) and the

evidence of material witnesses that the victim child was aged 5

years at the time of incident. She had gone to the house of the

appellant for playing with his children. At that time, the appellant

allured her on the pretext of giving her milk and then he touched

his private parts to the lips of the victim. Apparently, thus, the act

of appellant is covered by the definition of penetrative sexual

assault given in sub-clause (d) of Section 3 of the POCSO Act. As

this act was committed with a child below 12 years, the same

would be punishable under Section 5 (m) of the POCSO Act.

It is however made clear that observations made above are

restricted for the purposes of disposal of this application for

suspension of sentences only and will not prejudice the defences

of the appellant at the time of final disposal of the appeal.

We are not inclined to accept the application for suspension

of sentences filed on behalf of the appellant-applicant, the same is

dismissed as being devoid of merit.

(MANOJ KUMAR GARG),J (SANDEEP MEHTA),J

42-Mamta/-

(Downloaded on 13/07/2021 at 08:48:37 PM)

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