Rajasthan High Court - Jodhpur
Harsilal vs State on 10 October, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 175/2022
Harsilal S/o Sh. Devphool, Aged About 38 Years, By Caste
Meena, Resident Of Sapotra, P.s. Sapotra, District Karoli (Raj.),
At Present Posted As Teacher, Govt. Upper Primary School,
Kumharon Ka Bera, Shergarh, District Jodhpur (Presently Lodged
In The Central Jail, Jodhpur)
----Petitioner
Versus
State, Through PP
----Respondent
For Petitioner(s) : Mr. L.K. Ramdhari
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
10/10/2022
The instant application for suspension of sentences
under Section 389 CrPC has been preferred on behalf of the
appellant-applicant Harsilal S/o Devphool, who has been convicted
and sentenced as below vide the judgment dated 31.01.2019
passed by the learned Special Judge, Protection of Children from
Sexual Offences Act Cases and Protection of Child rights
Commission Act, 2005, Jodhpur District, Jodhpur in Sessions Case
No.13/2018 :
Offences for Sentence, fine and default sentence
which convicted awarded
Section 5(F)(J)(ii) Life imprisonment alongwith a fine of
(L) of the POCSO Rs.10,000/- and in default of payment of fine,
Act, 2012 further to undergo simple imprisonment of three
months
(2 of 4) [SOSA-175/2022]
Section 312, 315 For each count, rigorous imprisonment of three
read with Section years alongwith a fine of Rs.5000/- and in
114 IPC default of payment of fine, further to undergo
additional simple imprisonment of one month
Learned Public Prosecutor has placed on record the
custody certificate of the appellant as received from the Central
Jail, Jodhpur, as per which, he had suffered the imprisonment of 9
years 11 months and 15 days as on 19.05.2022.
We have heard and considered the submissions
advanced by the learned counsel Mr. L.K. Ramdhari, representing
the appellant, and the learned Public Prosecutor and have gone
through the material available on record.
It may be stated here that the first application for
suspension of sentences filed on behalf of the appellant was
rejected by this court on 15.10.2019. Since then, the appeal has
not been taken up for hearing even once. The appellant has been
convicted for the above offences with an allegation that he
subjected the alleged victim Mst. 'K' to aggravated sexual assault
as a result whereof, she conceived and thereafter, the appellant
facilitated her abortion.
Learned counsel Mr. Ramdhari urged that ex facie,
there is no material on record of the case to show that the victim
was less than 18 years of age on the date of the incident. The
incident took place in the year 2013, at which point of time, the
offences under the POCSO Act were not punishable with minimum
sentence of life imprisonment. The minimum sentence which was
prescribed at the relevant point of time for the offences alleged
was 10 years, which could extend to life imprisonment. Mr.
Ramdhari urged that the trial court has assigned no reason
(3 of 4) [SOSA-175/2022]
whatsoever to award life imprisonment to the appellant. He
submitted that in view of the remote chances of the appeal being
heard in near future, the appellant deserves indulgence of bail
during the pendency of the appeal.
Learned Public Prosecutor, on the other hand,
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 as per the custody certificate, the appellant
has remained incarcerated well in excess of 10 years as on date.
As per the statement of the victim Mst. 'K', the first
instance of her being subjected to sexual assault took place 5
months before lodging of the report. The first application for
suspension of sentences filed on behalf of the appellant was
rejected by this court on 15.10.2019. However, the appeal has
not been taken up for hearing even once thereafter. Hence, there
is a remote possibility of the matter being heard finally in the near
future.
In this background and considering over all facts and
circumstances as available on record and more particularly, the
prolonged custodial period suffered by the appellant, we are
inclined to suspend the sentences awarded to him by the trial
court.
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, Protection of
Children from Sexual Offences Act Cases and Protection of Child
rights Commission Act, 2005, Jodhpur District, Jodhpur vide
judgment dated 31.01.2019 in Sessions Case No.13/2018 against
the appellant-applicant Harsilal S/o Devphool shall remain
(4 of 4) [SOSA-175/2022]
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 11.11.2022 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
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.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
25-Pramod/-
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