Rajasthan High Court - Jodhpur
Mahendra vs State Of Rajsthan ... on 2 September, 2023
Bench: Farjand Ali
[2023:RJ-JD:27921]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 835/2023
In
S.B. Criminal Appeal No.1390/2023
Mahendra S/o Soma, Aged About 22 Years, Balwada Fala Verat,
P.s. Kotwali, Dist. Dungarpur. (Lodged In Central Jail, Udaipur).
----Petitioner
Versus
State Of Rajsthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Gaju Singh
For Respondent(s) : Mr. Muhktiyar Khan, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
02/09/2023
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
22.06.2023 passed by the learned Special Judge, POCSO Act
Cases, Dungarpur in Sessions Case No.87/2021 whereby he was
convicted and sentenced to suffer maximum imprisonment of 20
years under Section 5/6 of the POCSO Act and lesser punishment
for the other offence under Section 376 (2) of the IPC.
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.
Hearing of the appeal is likely to take long time, therefore, the
application for suspension of sentence may be allowed.
[2023:RJ-JD:27921] (2 of 3) [SOSA-835/2023]
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 after going through the statement of
victim Mst. 'G' recorded under Section 161 Cr.P.C. on 10.08.2021,
under Section 164 Cr.P.C. recorded on 16.08.2021 and whereafter
during trial as P.W. 1, it is reflecting that the victim Mst.'G' was in
relationship with the appellant and joined his association at her
own free will and volition without there being any compulsion. The
submission with regard to presence of element of consensual
sexual relationship cannot be ignored, at this stage when the
appeal has been admitted and 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-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 Cases,
Dungarpur who passed the impugned order vide order dated
[2023:RJ-JD:27921] (3 of 3) [SOSA-835/2023]
22.06.2023 in Sessions Case No.87/2021 against the appellant-
applicant- Mahendra S/o Soma 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 09.10.2023
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
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
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