The court established that the suspension of sentences under Section 389 Cr.P.C. requires consideration of the strength of the evidence and the duration of custody.

JUDGMENT

1. The instant application for suspension of sentences under Section 389 Cr.P.C. has been preferred by appellant-applicant Kishan S/o Motilal, who has been convicted and sentenced as below vide judgment dated 28.11.2019 passed by learned Addl. Sessions Judge, Pali in Sessions Case No.48/2015:

(Both the sentences were ordered to run concurrently.)

2. Learned Public Prosecutor has chosen not to file reply to the application for suspension of sentences and proposes to argue the matter orally.

3. We have heard and considered the submissions advanced by Shri Rajpurohit and Shri Bishnoi, learned counsel representing the applicant-appellant and learned Public Prosecutor and have gone through the impugned judgment and the record.

4. Craving indulgence of bail to the applicant-appellant, Shri Rajpurohit and Shri Bishnoi vehemently and fervently urge that the entire prosecution case which is based on false and fabricated circumstantial evidence. The applicant-appellant has been convicted in this case solely on the basis of allegation that he was having possession of the mobile phone of the deceased and the recovery of currency notes. It is contended that if the statement of the Panch-witness PW.8 Ramlal and the corresponding memos are seen, apparently, the documents were prepared on 19.04.2013 whereas the information?s of the accused under Section 27 of the Evidence Act were recorded on 21.04.2013. They further contend that the mobile phone which was recovered at the instance of the accused was not identified as belongs to the deceased. No witness examined during trial disclosed the Sim number being used by the deceased and thus, there is no plausible evidence on the record of the case to link the recovered mobile phone with the deceased. They, thus urged that applicant-appellant who is in custody for more than last eight years, deserves indulgence of bail during pendency of the appeal.

5. Learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. However, he too is not in a position to dispute the fact that the recovered currency notes could not have been identified. The 10 admittedly did not collect any evidence to link ownership or possession of the mobile phone recovered at the instance of the applicant-appellant with the deceased.

6. Thus, we are of the opinion that the applicant-appellant has available to him strong grounds for assailing the impugned judgment. He is in custody for last more than eight years. Hearing of the appeal is unlikely in near future. In this background, we are inclined to suspend the sentences awarded to the accused-appellant by the trial court, during pendency of appeal.

7. Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Addl. Sessions Judge, Pali vide judgment dated 28.11.2019 in Sessions Case No.48/2015 against the appellant-applicant Kishan S/o Shri Motilal shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he shall furnish 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 20.08.2021 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, if the sureties change their address(s), they will give in writing their changed address to the tri