The court has the discretion to suspend a sentence pending appeal under Section 389 Cr.P.C., considering the circumstances and custody period of the appellant.

JUDGMENT

1. Heard learned counsel for the parties on the application for suspension of sentence.

2. The instant application for suspension of sentence has been preferred by the appellant-applicant, who has been convicted and sentenced by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and Child Rights Protection Commission Act, 2005, Dungarpur in Sessions Case No. 157/2019 vide judgment dated 20.09.2021. The appellant-applicant has been sentenced as under:-

3. Learned counsel for the appellant has submitted that the trial court has erred in convicting the appellant by the impugned order dated 20.09.2021. It is argued that as a matter of fact, the prosecutrix (P.W.-6) and the appellant were known to each other and she eloped with the appellant as per her own free will. Learned counsel has invited the attention of the Court towards the statement of prosecutrix (P.W. 6) recorded under Section 164 Cr.P.C. in which she has admitted her relationship with appellant-Manish and during the course of investigation before the Police she did not allege sexual assault on her, though in her Court statement she has falsely stated that she gave statement before the Police and Magistrate under pressure of the appellant. Learned counsel has further submitted that even in the Court, the prosecutrix has refused to go with her parents. It is submitted that other evidence available on record clearly suggests that the prosecutrix went with the appellant as per her own free will. It is also submitted that the appellant is also of tender age and in such circumstances, it cannot be said that the appellant had any intention to commit crime. The appellant is in custody since 20.08.2019, however, the appeal preferred by him against the impugned judgment will take sufficiently long time in hearing. Thus, it is prayed that the sentence awarded to the appellant-applicant by the trial court may be suspended.

4. Learned Public Prosecutor opposed the application for suspension of sentences.

5. Having heard learned counsel for the parties; after carefully scrutinizing the record of the case and taking into consideration the custody period of the appellant-applicant, this Court is inclined to suspend the sentence awarded to the appellant-applicant by the trial court vide impugned judgment dated 20.09.2021.

6. Accordingly, this application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the substantive sentence passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and Child Rights Protection Commission Act, 2005, Dungarpur in Sessions Case No. 157/2019 against appellant-applicant Manish S/o. Shri Kalu shall remain suspended till final disposal of the aforesaid appeal 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 22.12.2022 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 appellant 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 address, 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-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-appellant 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