Mohan vs State Of Rajasthan ...
2023 Latest Caselaw 3566 Raj

[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.




 [2023/RJJD/011862]                   (2 of 4)                    [SOSA-857/2022]

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.

[2023/RJJD/011862] (3 of 4) [SOSA-857/2022]

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.

[2023/RJJD/011862] (4 of 4) [SOSA-857/2022]

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/-

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