The court has the discretion to suspend a sentence under Section 389 Cr.P.C. based on the overall submissions and the totality of facts and circumstances.

ORDER

1. Heard learned counsel for the accused appellant and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dated 08.11.2021 passed by learned Special Court, POCSO, 2012, Sawaimadhopur whereby the accused appellant has been convicted for the offence punishable under sections 363, 366, 376(2)(N) and 354D of IPC and Sections 5/6 and 11/12 of POCSO Act and has been sentenced to maximum ten years rigorous imprisonment along with fine of Rs.50,000/-and in default of payment of fine further undergo six months R.I.

2. Learned counsel for the accused-appellants submits that there is a major discrepancy in the case of the prosecution which goes to the root of the case and makes the entire story highly dubious and therefore, basing conviction on such tainted evidence would not be safe. It is asserted that in the FIR, Exhibit-P21 which got lodged at the behest of Ramdhan (PW-6), the father of the prosecutrix that it was Amrit who while impostering himself as a woman came to his agricultural field and forcibly took away his daughter ’Ms. M’. At a subsequent stage, the name of the appellant has been inserted. Learned counsel further drew attention towards statement of PW-1, the prosecutrix wherein even in her examination-in-chief, she admits that while eloping with the appellant, she took Rs.10,000/- and 1Kg silver ornaments with her. In the first line of her examination-in-chief she stated that she made a phone call to her boyfriend Deshraj who is the appellant here and called him to take her away and thereafter she went with him and roamed at various places and even used public transport. As far as the question of the prosecutrix being minor is concerned, learned counsel drew attention of this Court towards certain documents made by PW-6-Ramdhan, the father of the prosecutrix, who even did not know his date of birth and was having no document on the basis of which the date of birth was mentioned in the school record. The documents Exhibit-D2 to D4 have been produced on behalf of defence wherein the age of victim has been shown above 18 years when her marriage got solemnized in a community gathering. He submits that learned trial Court has failed to appreciate correct and factual aspects of the matter and thus committed a grave error of law in convicting the accused.

3. Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellant.

4. The accused-appellant is behind the bars and the hearing of appeal is likely to take further more time, therefore, considering the overall submissions and looking to the totality of facts and circumstances of the case 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.

5. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Court, POCSO, 2012, Sawaimadhopur, vide judgment dated 08.11.2021 in Sessions Case No.23/2019 against the appellant-applicant Deshraj Son Of Brajmohan 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 their appearance in this court on 08.02.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, i