Rajasthan High Court – Jodhpur
Kishore Kumar vs State Of Rajasthan (2025:Rj-Jd:30607) on 12 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:30607]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 986/2025
In
S.B. Criminal Appeal No.161/2025
Kishore Kumar S/o Ghanesharam, Aged About 20 Years, R/o
Anadra P.s. Anadra District Sirohi. ( Presently Lodged At Central
Jail Jodhpur)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Laxman, By Caste Mali, Resident Of Pamera, District
Sirohi
----Respondents
For Petitioner(s) : Mr. Umesh Kant Vyas
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
12/07/2025
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
28.11.2024 passed by the learned Special Judge, POCSO Act
Cases, Sirohi in Sessions Case No.45/2023 whereby he was
convicted under Sections 376(3), 376(2)(N) of the IPC and
Section 5(l)/6 of the POCSO Act and maximum sentenced to
suffer twenty years’ RI along with a fine of Rs.20,000/- and in
default to further undergo six months’ RI and for lesser offence
under Sections 363 & 366 of the IPC.
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2. It is contended by the learned counsel for the appellant that
the learned trial Judge has not appreciated the correct, legal and
factual aspects of the matter and thus reached at an erroneous
conclusion of guilt, therefore, the same is required to be
appreciated again by this Court being the first appellate Court.
The appellant-applicant is in jail for a long time and hearing of the
appeal is likely to take long time, therefore, the application for
suspension of sentence may be granted.
3. Per contra, learned public prosecutor has vehemently
opposed the prayer made by learned counsel for the accused-
applicant for releasing the appellant on application for suspension
of sentence.
4. Despite service of notice, no one appeared to represent the
victim. Heard learned counsel for the parties and perused the
material available on record.
5. Perusal of the record reveals that the appellant, Kishore Kumar
is a young boy aged 20 years aslo, has been convicted and
sentenced to undergo 20 years of rigorous imprisonment. Upon
perusal of the record, including (i) the testimony of the
prosecutrix “D” recorded as PW-2 during investigation and trial,
(ii) photographs marked as Exhibits P-22 to P-26–particularly
Exhibit P-26 showing the posture of the prosecutrix, and (iii) social
media chats exchanged between the appellant and the prosecutrix
–it appears that there is some merit in the defence counsel’s
argument that both the appellant and the prosecutrix were in a
relationship and that the prosecutrix may have eloped with the
appellant voluntarily. However, this Court refrains from forming
any conclusive opinion on this issue at this stage, as such a
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finding may affect the outcome of the appeal, which is not likely to
be heard finally in the near future due to heavy pendency.
5.1. On an independent analysis of the depositions of PW-14
Deepak Boreya, PW-12 Jaswant Singh, PW-11 Ritwik Singh, PW-
10 Krishan Kumar, and PW-9 Samat Bhai, this Court gets further
strength in the plea of consensual elopement raised by the
defence. Accordingly, this argument does not carry sufficient
weight in the context of the overall prosecution evidence.
5.2. A critical issue in this matter concerns the age of the
prosecutrix at the time of the incident. There are notable
discrepancies in the prosecution’s evidence regarding her age:
(a) PW-6 Ravataram, Headmaster of the school, stated that the
prosecutrix was brought to the school for admission by her
grandfather Prabhu Ram, but he was not produced as a witness.
He admitted that he had relations with Prabhu Ram and that he
himself filled in the admission form, including the date of birth.
However, he could not explain the source from which the date of
birth was recorded.
(b) Neither the grandfather who brought the prosecutrix for
admission nor her father was examined as a prosecution witness
to make assertion on the aspect of date of birth of the victim.
(c) PW-5 Lakshmi Devi, mother of the prosecutrix, seems to be
naive. She could not provide any documentary evidence regarding
her daughter’s birth and was unable to state her age and the date
of her own marriage. She also did not know the age gap between
her daughters Hina and Soniya.
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6. In view of the above inconsistencies and omissions, there
appears to be force in the submission of the defence that the
prosecution’s evidence regarding the age of the prosecutrix is not
reliable. On the present material, it would be unsafe to
conclusively determine that the prosecutrix was below 18 years of
age. Therefore, convicting a young accused on such uncertain
evidence would be against the settled principles of criminal
jurisprudence. Though no final view is taken at this stage, the
Court cannot ignore the fact that the appellant has already spent
considerable time in custody. Given the current backlog, it is
unlikely that his appeal will be heard and disposed of soon. Hence,
deemed it fit to suspend the sentence awarded to him.
7. 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 trial court, the details of which are
provided in the first paragraph of this order, against the appellant-
applicant named above 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 satisfaction of the learned trial
Judge for his appearance in this court on 14.08.2025 and
whenever ordered to do so till the disposal of the appeal, on the
conditions indicated below:-
1. That he will appear before the trial Court in the month
of January of every year till the appeal is decided.(Downloaded on 15/07/2025 at 09:36:42 PM)
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2. That if the applicant changes the place of residence, he
will give in writing his changed address to the trial Court
as well as to the counsel in the High Court.
3. Similarly, if the sureties change their addresses, they
will give in writing their changed address to the trial
Court.
8. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicant was tried and convicted. A copy of this order shall also
be placed in that file for ready reference. The Criminal Misc. file
shall not be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
46-Mamta/-
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