Aashish vs State Of Rajasthan
2023 Latest Caselaw 2972 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Suspension of Sentence Application No.1286/2022

In

S.B. Criminal Appeal No. 2114/2022

Aashish S/o Shri Tulsiram, Aged About 22 Years, R/o Ghatau Fala Dera Ps Dovra Dist. Dungarpur Raj. (Appellant Is In Central Jail Udaipur)

----Appellant Versus

1. State Of Rajasthan, Through PP

2. Ku. A D/o Shri Dinesh, resident of Ghatav Kalla Nichala, P.S. Dovda, District Dungarpur.

                                                                  ----Respondent


For Appellant(s)            :    Mr. Hitendra Singh
For Respondent(s)           :    Mr. A.R. Choudhary, P.P.



             HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

12/04/2023

The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

19.11.2022 passed by the learned Special Judge, POCSO Act,

2012 & Child Rights Protection Commission Act, 2005, Dungarpur

in Sessions Case No.5/2022 whereby he was convicted and

sentenced to suffer imprisonment of 20 years' rigours

imprisonment along with a fine of Rs. 50,000/- under Sections

376(2) and under Section 5/6 of POCSO Act.

It is contended on behalf of the applicant that the victim has

been examined as P.W.-01 in the trial and she has totally negated

the story set out by the prosecution and rather turned hostile and

(2 of 4) [SOSA-1286/2022]

as such there was nothing on record, on the basis of which the

finding of guilt can be reached. He further submits that the

learned trial Judge has passed the judgment of conviction on the

strength of medical evidence. In this regard, it is submitted that

the possibility of error in preservation and collection of sample as

well as error in examination cannot be ruled out and the same

shall be further appreciated while hearing the appeal finally.

He further submits that the learned trial Judge has not

appreciated the correct, legal and factual aspects of the matter

and thus, reached at an erroneous conclusion of guilt, therefore,

the same is required to be appreciated again by this court being

the first appellate Court. He was on bail during trial and did not

misuse the liberty so granted to him; hearing of the appeal is

likely to take long time, therefore, the application for suspension

of sentence may be granted.

Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the appellant on application for suspension of sentence.

Heard learned counsel for the parties and perused the

material available on record.

Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly the facts that the accused-appellant

was on bail during the course of trial and the hearing of appeal is

likely to take further more time and considering the overall

submissions while refraining from passing any comments on the

(3 of 4) [SOSA-1286/2022]

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 learned Special Judge, POCSO Act, 2012 &

Child Rights Protection Commission Act, 2005, Dungarpur who

passed the impugned order dated 19.11.2022 in Sessions Case

No. 5/2022 against the appellant-applicant- Aashish S/o Shri

Tulsiram 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 12.05.2023 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 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 addresses, 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

(4 of 4) [SOSA-1286/2022]

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.

(FARJAND ALI),J 60-divya/-

Powered by TCPDF (www.tcpdf.org)