The High Court allowed the appellant's application under Section 389 Cr.P.C. to suspend the sentence of imprisonment and release him on bail pending the disposal of the appeal against his conviction.
Sentence suspended; accused released on bail in Rs. 50,000 with two sureties of Rs. 25,000 each.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B.Criminal Misc. SOS Application No. 166/2022
IN
S.B. Criminal Appeal No. 247/2022
Shivprakash @ Shivprasad Son Of Shri Ramchandra, Aged About 39 Years, Resident Of Irolav, Police Station Sambharlake, District Jaipur (Raj.) (At Present In Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Appellant(s) : Mr. Prathishtha Sunger For Respondent(s) : Mr. Mangal Singh Saini, PP
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 22.12.2021 passed by Special Judge, POCSO Act Cases 2012, Jaipur District(Raj.) in Sessions Case No. 97/2018 whereby the accused-appellant has been convicted for the offence punishable under sections 363 IPC and has been sentenced with maximum of three years rigorous imprisonment along with fine of Rs. 50,000/-; under Section 366 IPC and has been sentenced with maximum of five years rigorous imprisonment along with fine of Rs. 50,000/- as well as under section 5(L)/6 of POCSO Act, 2012 and has been sentenced with
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[SOSA166/2022]
maximum of twenty years rigorous imprisonment along with fine of Rs. 1,00,000/-
Learned counsel for the accused-appellant submits that no offence has been committed as alleged in the charge sheet rather from the circumstances appearing in this case a safe inference of consent can easily be drawn. The prosecutrix is a major girl which is evident from the documents Ex. D4 Ration card as per her date of birth was 5.2.1999 and the same date has been verified by her father (PW4) in the trial. He placed reliance on the judgment passed by the Hon’ble Supreme Court in the case of Vishnu @ Undrya Vs. State of Maharashtra reported in 2006SCC283 wherein it is observed by Hon’ble Supreme Court that the evidence of parents regarding the birth of their child would prevail over any other evidence. To draw an inference of consent, learned counsel argued that the victim eloped with the appellant and remained with him for six long years and there was ample opportunity for her to make protest or complain or to raise an alarm but nothing was done. These circumstances are sufficient to show her willful association with the appellant. The submission regarding putting vermilion on her forehead and wearing mangalsutra gets further fortification from the admission made by PW1 victim in the evidence. He was on bail during the entire course of the trial but the liberty was never misused. Therefore, the application for suspension of sentence may be granted.
Learned Public Prosecutor has vehemently opposed the prayer made by learned counsel for the accused-appellant for releasing the appellant on bail.
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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 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 Special Judge, POCSO Act Cases 2012, Jaipur District(Raj.) in Sessions Case No. 97/2018 vide judgment dated 22.12.2021 against the appellant-applicant- Shivprakash @ Shivprasad Son Of Shri Ramchandra 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 13.02.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
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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 accusedapplicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. 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
Anu /24
2 issues framed by the court
Whether the application for suspension of sentence under Section 389 Cr.P.C. is maintainable in the present facts and circumstances.
Whether the accused-appellant is entitled to be released on bail while the appeal is pending.
Colour shows how this judgement treated each authority
Vishnu @ Undrya Vs. State of MaharashtraReferred¶18
Vishnu @ Undrya Vs. State of Maharashtra 2006SCC283
4 provisions across 3 enactments
Shivprakash @ Shivprasad Son Of Shri Ramchandra
State Of Rajasthan
Farjand Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
