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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.
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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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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/-
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