GANESH CHOUDHARY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This suspension of sentence application has been filed under Section 389 CrPC.

(2.) Learned counsel for the appellant submits that earlier father of the prosecutrix filed a D.B. Habeas Corpus Petition No. 32/2015 titled Jagdish Prasad Sharma v. State of Rajasthan and Ors. before this Court, wherein prosecutrix stated before the Court that she wanted to go with respondent no.5 (the present appellant) and Ganesh Chaudhary was not at fault. She further stated that she voluntarily left her parents' home and went alongwith Ganesh Chaudhary and a false FIR was registered by her parents. He further submits that in Ex.-D/2 (statement of the prosecutrix recorded under Section 161 CrPC), she categorically stated that she was in love with the appellant for the past 3 years and this fact came to the notice of her family members, due to which they were harassing her. Learned counsel for the appellant further submits that pursuant to the order passed by the Division Bench of this Court, the prosecutrix was sent to Balika Grah, Gandhi Nagar, Jaipur. Subsequently, her statement under Section 164 CrPC was recorded, wherein no allegation was levelled with regard to committing rape with her, whereas the prosecutrix stayed with the appellant for about 2 ½ months. He further submits that prosecutrix is major and as per Ex. D/1, her date of birth is 12.10.1995, but the prosecution side concealed this document and produced the private school record. He further submits that taking into consideration all the facts and circumstances of the case, the trial court granted bail to the appellant vide order dated 8.1.2016. In this way, the appellant was on bail during trial. He has annexed a certificate under Rule 311 (3) of the Rules to this effect. Thus, the sentence of the appellant is required to be suspended by this Court.

(3.) On the other hand, learned counsel for the complainant submits that the Division Bench of this Court vide its order dated 28.4.2015 passed in D.B. Habeas Corpus Petition No. 32/2015 sent the matter to Child Welfare Committee. Thereafter the Medical Board was constituted and the age of prosecutrix was assessed about 17 years. Thus, she was minor. He further submits that in the case of minor, question of consent is immaterial. He further submits that the prosecution being minor, she was put under coercion and a threat was given to her, therefore, she gave statement in favour of the appellant. He further submits that the aforesaid documents had already been taken into consideration by the Division Bench of this Court, Child Welfare Committee as well as learned Court below and no new document has been brought on record. In this view of the matter, the suspension of sentence application filed by the appellant is liable to be dismissed. Learned PP appearing for the State has also opposed the suspension of sentence application filed by the appellant.