[2023/RJJD/011862] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 857/2022 IN D.B. Criminal Appeal No.133/2022 Mohan S/o Homa Gameti, Aged About 30 Years, R/o Khila Ps Bekariya Dist. Udaipur Raj. (Presently Lodged In Central Jail Udaipur)
----Petitioner Versus
1. State of Rajasthan.
2. Kalu Ram S/o Bheema Ji Gameti, R/o Rai, Police Station -
Bekariya, District - Udaipur (Rajasthan)
----Respondent For Petitioner(s) : Mr. Rajendra Singh Rathore. For Respondent(s) : Mr. B.R. Bishnoi, P.P.
HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 25/04/2023
1. The appellant-applicant herein has been convicted and sentenced as below vide judgment dated 7.11.2019 passed by the learned Special Judge, Protection of Children From Sexual Offences Act, 2012, No.1, Udaipur (Rajasthan) in Special Sessions Case No.68/2018 (CIS 68/2018):
Offences Sentence Fine
363 IPC 3 years R.I. Rs.2,000/- and in default of
which to further undergo 2
months R.I.
366 IPC 3 years R.I. Rs.2,000/- and in default of
which to further undergo 2
months R.I.
Section 4 of Act L.I. Rs.5,000/- and in default of
of 2012 which to further undergo 6
months S.I.
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2. The appellant-applicant has preferred the application for suspension of sentence under Section 389 Cr.P.C. for release on bail during the pendency of the appeal.
3. It is submitted by learned counsel for the appellant - applicant that the applicant was on bail during pendency of the trial and is already in custody for over 4 years now, the hearing of the appeal is likely to take time.
4. Further submissions have been made that the offence is alleged to have been committed on 18.4.2014, the FIR was lodged on 25.4.2014 inter alia indicating the place of offence at Jungle. Whereafter, in the statements of the prosecutrix recorded under Section 161 Cr.P.C. on 29.4.2014, the same place of occurrence was indicated, however, in the statement recorded under Section 164 Cr.P.C. on 4.6.2014, the place of occurrence was changed to that of the house of one Raju. The Investigating Officer, who was examined as PW/5, when asked about not making the site plan of house of Raju, indicated that when it was not alleged that offence has not taken place at the house of Raju, he did not make the site plan of the said house, which clearly projects that the entire allegations against the applicant are cooked up and the conviction of the petitioner is without any basis.
5. Further submissions have been made that though the claim made about the age of the prosecutrix was 11 years, in the medical report, she has been found to be aged about 16 to 18 years. However, the trial court has not appreciated the said important aspects available on record. It was prayed that the applicant be enlarged on bail.
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6. Learned Public Prosecutor opposed the application for suspension of sentence with reference to the injury marks on the prosecutrix.
7. Having considered the totality of facts and circumstances of the case and after carefully scrutinizing the record of the case and likelihood of hearing of the appeal taking substantially long time, without making observation on the merit, we consider it just and proper to suspend the substantive sentence awarded to the appellant - applicant Mohan S/o Homa Gameti,, during the pendency of the appeal.
8. Accordingly, the instant application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that sentence passed by the learned Special Judge, Protection of Children From Sexual Offences Act, 2012, No.1, Udaipur (Rajasthan) in Special Sessions Case No.68/2018 (CIS 68/2018) against the appellant-applicant Mohan S/o Homa Gameti, shall remain suspended till final disposal of the aforesaid appeal and she 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 learned trial Judge for his appearance in this court on 24/5/2023 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.
2. That if the applicant change 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.(Downloaded on 25/04/2023 at 11:23:35 PM)
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3. Similarly, if the sureties change their address(s) they will give in writing their changed address to the trial court.
9. 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 relating 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. Criminal Misc. file shall not been taken into account for statistical purpose relating to pendency and disposal of the cases in the trial court. In case the said accused-applicant did not appear before the trial court, learned trial Judge shall report the matter to the High Court for cancellation of bail.
(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J 19-Sumit/-(Downloaded on 25/04/2023 at 11:23:35 PM)
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