Banshi Lal vs State Of Rajasthan ...
2023 Latest Caselaw 7774 Raj

[2023:RJ-JD:32266]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 671/2023

Banshi Lal S/o Kana, Aged About 20 Years, R/o Kundali, Police Station Ramsagda, District Dungarpur. (At Present Lodged In District Jail, Dungarpur)

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Smt. Savita W/o Late Shri Daya Ram Damor Meena, R/o Bhinda, Phala Biska, Police Station Dhambola Presently Resident Care Of Savla Katara, Near Gokulpur, Dundh Dairy, Police Station Kotwali, District Dungarpur.

                                                                 ----Respondents


For Petitioner(s)          :    Mr. Mohd. Rasheed
For Respondent(s)          :    Mr. A.R. Choudhary, P.P.



                HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

03/10/2023

1. The instant application for suspension of sentence has been

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

05.06.2023 passed by the learned Special Judge, Protection of

Children from Sexual Offences Act, Dungarpur in Sessions Case

No.65/2021 whereby he was convicted and sentenced to suffer

maximum imprisonment of 20 years under Sections 376(2) &

376(3) of IPC and lesser punishment for the other offences under

Sections 344, 366 & 363 of IPC and under Section 5/6 of POCSO

Act.

2. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

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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. The sentence of the accused-

petitioner has already been suspended by the trial 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.

3. Per contra, learned public prosecutor has vehemently

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

releasing the petitioner on application for suspension of sentence.

4. Heard and perused the material available on record.

5. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, and perusal of the statement of PW-9 the victim 'H'

revealing that she has not made allegations of penetrative sexual

assault over the appellant, the learned trial Court has based its

conviction on the basis of physical examination report for which

arguments have been canvassed with regard to the sanctity of

collection of samples, preservation of FTA Card and sending off the

material to the FSL in its intact condition, more particularly the

facts/fact that the accused-petitioner 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

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case for suspending the sentence awarded to the accused-

petitioner.

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 Special Judge, Protection of Children

from Sexual Offences Act, Dungarpur who passed the impugned

order 05.06.2023 in Sessions Case No. 65/2021 against the

petitioner-applicant- Banshi Lal S/o Kana 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 03.11.2023 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.

7. 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

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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 140-Samvedana/-

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