Single judge allowed suspension of sentence under Section 389 Cr.P.C. for appellant convicted under POCSO Act pending appeal in criminal appeal, releasing him on bail subject to conditions.
Sentence suspended till final disposal of appeal; released on bail with personal bond of Rs.50,000 and two sureties of Rs.25,000 each.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Cr. Misc. Suspension of Sentence Application No.757/2022
IN
S.B. Criminal Appeal No. 1106/2022
Rahul S/o Shri Vishamber @ Kalwa, Resident Of Hanipur, P/s Kathumar, District Alwar. (Presently All Are In Central Jail, Alwar.)
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor.
----Respondent
For Appellant(s) : Mr. Gurvindra Singh 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 13.06.2022 passed by Special Judge, POCSO Act, 2012 and National Commission for Protection of Child Rights Act, 2005 No.4, Alwar, District Alwar, Rajasthan in Sessions Case No.29/2021 the accused-appellant has been convicted for the offence punishable under sections 363 and 366 of I.P.C. and 3/4(2) of POCSO Act and has been sentenced with maximum of 20 years rigorous imprisonment along with fine of Rs. 20,000/- in default of payment of fine further S.I. of one year.
(2 of 4) [SOSA-767/2022]
Learned counsel for the accused-appellant submits that though the prosecutrix levelled allegation of gang rape and the involvement of accused Suresh, Amandeep & Pushpendra was mentioned in the report and statement, but after investigation, the prosecutrix has not been found reliable to this extent and the above mentioned three accused persons were exonerated from the allegation and the charge-sheet came to be filed only against the accused-appellant. In this view of the matter, learned counsel submits that basing conviction on the sole testimony of the prosecutrix which has been belied to a great extent would not be safe since the substratum of the allegation has been belied in light of the thorough investigation conducted by the investigating agency. He submits that in view of the provision contained under Section 386 of the Cr.P.C and the judgment passed by the Hon’ble Supreme Court in the State of Gujarat Vs. Bhalchcandra Lakshmi Shankar Dave (2021) 2 SCC 735, the matter is required to be apreciated afresh. Hearing of the appeal would take a long time and he is behind the bars since 27.10.2020, thus, in view of the available material, his further incarceration would not be justifiable. Therefore, the application for suspension of sentence may be granted.
Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant.
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
(3 of 4)
[SOSA-767/2022]
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 the learned Special Judge, POCSO Act, 2012 and National Commission for Protection of Child Rights Act, 2005 No.4, Alwar, District Alwar, Rajasthan vide judgment dated 13.06.2022 in Sessions Case No.29/2021 against the appellantapplicant- Rahul S/o Shri Vishamber @ Kalwa 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:-
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
(4 of 4) [SOSA-767/2022]
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
Keshav/36
Colour shows how this judgement treated each authority
State of Gujarat Vs. Bhalchandra Lakshmi Shankar Dave (2021) 2 SCC 735Referred¶16
3 provisions across 3 enactments
Rahul S/o Shri Vishamber @ Kalwa
State Of Rajasthan
Farjand Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
