Bholiya vs State Of Rajasthan
2023 Latest Caselaw 4787 Raj

[2023/RJJD/015608]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension of Sentence Application (Appeal) No.873/2021

IN

S.B. Criminal Appeal No. 1267/2021

1. Bholiya S/o Kodra Gamar, Aged About 27 Years, R/o Village Umariya, Police Station Kotda, District Udaipur. (Presently Lodged In District Jail, Udaipur)

2. Vikram S/o Shri Vela Gamar, Aged About 28 Years, R/o Village Umariya, Police Station Kotda, District Udaipur. (Presently Lodged In District Jail, Udaipur)

3. Bhamru S/o Shri Vela Gamar, Aged About 31 Years, R/o Village Umariya, Police Station Kotda, District Udaipur. (Presently Lodged In District Jail, Udaipur)

4. Vinod S/o Shri Ransa Khokhariya, Aged About 35 Years, R/o Khakhariya Tala, Police Station Kotda, District Udaipur. (Presently Lodged In District Jail, Udaipur)

----Appellants Versus State Of Rajasthan, Through PP

----Respondent

For Appellant(s) : Mr. Sanjay Mathur For Respondent(s) : Mr. Mohd. Javed Gauri, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

17/05/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 28.10.2021 passed by learned Additional Sessions

Judge No.3, Udaipur in Sessions Case No.49/2017 (CIS

No.49/2017) whereby they were convicted and sentenced to

suffer maximum punishment of 14 years rigorous

[2023/RJJD/015608] (2 of 4) [SOSR-873/2021]

imprisonment along with fine of Rs.10,000/- under Sections

370(5)/34 of IPC and lesser punishment for the other

offences under Section 374 of IPC as well as Section 79 of

Juvenile Justice (Care & Protection of Children) Act.

2. It is contended on behalf of the applicant 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. They were on bail during the trial and never misused

the liberty so granted to them. Hearing of the appeal is likely

to take long time, therefore, the application for suspension

of sentence may be granted.

3. Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of the accused-

applicants for releasing the appellants on application for

suspension of sentence.

4. Heard learned counsel for the and perused the material

available on record.

5. The submission of the learned counsel for the appellant that

even if the case of the prosecution is taken on its face value

and in its entirety, the case won't travel beyond the Child

Labour Restraint Law and by any stretch of imagination, it

cannot be taken as a case of human trafficking seems to be

worth considering. Upon consideration of the grounds raised

in the memo of the appeal, looking to the totality of facts

[2023/RJJD/015608] (3 of 4) [SOSR-873/2021]

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 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-appellants.

6. 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 Additional Sessions Judge

No.3, Udaipur in Sessions Case No.49/2017

(CIS No.49/2017) against the appellants-applicants-

1. Bholiya S/o Kodra Gamar, 2. Vikram S/o Shri Vela

Gamar, 3. Bhamru S/o Shri Vela Gamar, 4. Vinod S/o

Shri Ransa Khokhariya shall remain suspended till final

disposal of the aforesaid appeal and they shall be released

on bail provided each of them 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 their

appearance in this Court on 16.06.2023 and whenever

ordered to do so till the disposal of the appeal on the

conditions indicated below:-

1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.

[2023/RJJD/015608] (4 of 4) [SOSR-873/2021]

2. That if the applicants change the place of residence, they will give in writing their changed addresses 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.

(FARJAND ALI),J 1-Ashutosh/-

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