Rajasthan High Court - Jodhpur
Mohd. Zisan vs State Of Rajasthan on 29 June, 2021
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Suspension of Sentence Application
No.291/2021
in
S.B. Criminal Appeal No. 357/2021
Mohd. Zisan S/o Sh. Nazar Mohd., Aged About 24 Years, B/c
Muslim, R/o Mahtos, Teh. Bilaspur, P.s. Khajuriya, Dist. Rampur,
U.p. (At Present C/o Handicraft Factory Of Kishna Ram, At
Tanavada, P.s. Bashni, Dist. Jodhpur. (Presently Lodged In
Central Jail, Jodhpur).
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Kaluram Bhati, through VC
For Respondent(s) : Mr. Gaurav Singh, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order
29/06/2021
The instant application for suspension of sentence
under Section 389 CrPC is preferred on behalf of the appellant-
applicant Mohd. Zisan S/o Nazar Mohd., who has been convicted
and sentenced for the offences under Sections 363, 366-A, 354,
354-B IPC and Section 9(m) read with Section 10 of the POCSO
Act vide the judgment dated 25.03.2021 passed by learned
Special Judge, POCSO Act Cases, Jodhpur Metropolitan in Sessions
Case No.27/2019.
Learned counsel Mr. Kaluram Bhati, representing the
appellant-applicant, submits that the entire prosecution case is
false and fabricated. The victim Mst. 'H', upon being examined on
(2 of 4) [SOSA-291/2021]
oath as P.W.1, did not level any allegation of sexual assault
against the appellant, in spite thereof, the learned trial court acted
with gross illegality and convicted the appellant on the basis of the
statement of the victim recorded under Section 164 CrPC,
whereas the said statement was not put to the victim by way of
confrontation/re-examination. He urges that the appellant is in
custody in this case for more than two years and three months.
Hearing of the appeal is unlikely in near future. He, thus, prays
that the appellant may be granted indulgence of bail during the
pendency of the appeal by suspending the sentences awarded to
him by the trial court.
Learned Public Prosecutor has vehemently and fervently
opposed the submissions advanced by the appellant's counsel.
Nonetheless, he too is not in a position to dispute the
fact that the victim Mst. 'H', upon being examined on oath, only
alleged that the assailant opened her trouser. She did not level
any pertinent allegation of sexual assault against the accused in
her sworn testimony. In cross-examination, she categorically
admitted that nobody outraged her modesty nor did the accused
subject her to any indecent act, that she did not know the accused
from before and that her assailant was not present in the court.
Apparently, thus, there is a grave discrepancy in the testimony of
the victim regarding the alleged sexual assault and the identity of
the accused. The trial court adopted a very strange approach
while appreciating the evidence and at para No.29 of the
impugned judgment, the entire statement of the victim recorded
under Section 164 CrPC was reproduced and was virtually relied
upon so as to record guilt of the accused in this case. The
appellant has remained in custody for a period in excess of two
(3 of 4) [SOSA-291/2021]
years and three months, out of the maximum sentence of five
years awarded to him by the trial court. He has available to him
strong grounds for assailing the impugned judgment.
In this background and having regard to the entirety of
the facts and circumstances of the case, this court is of the view
that it is a fit case for grant of indulgence of bail to the appellant-
applicant by suspending the sentences awarded to him by the trial
court during the pendency of the appeal.
Accordingly, the application for suspension of sentences
filed under Section 389 Cr.P.C. is allowed and it is ordered that the
sentences passed by the learned Special Judge, POCSO Act Cases,
Jodhpur Metropolitan vide judgment dated 25.03.2021 in Sessions
Case No.27/2019 against the appellant-applicant Mohd. Zisan S/io
Nazar Mohd. 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 30.07.2021 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 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 address(s),
they will give in writing their changed address to
the trial Court.
The learned trial Court shall keep the record of
attendance of the accused-applicant in a separate file. Such file be
(4 of 4) [SOSA-291/2021]
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. 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.
(SANDEEP MEHTA),J
9-Pramod/-
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