The court established that prolonged custody and delay in appeal hearings can warrant the suspension of sentences under Section 389 Cr.P.C.

ORDER

1. The appellants herein have been convicted and sentenced as below vide judgment dated 30/4/2022 passed by the learned Addl. Sessions Judge, Pali in Sessions Case No. 74/2015 (CIS No. 54/2015):

2. The appellants-applicants have preferred the applications for suspension of sentence under Section 389 Cr.P.C. for release on bail during the pendency of the appeal.

3. Leaned counsel for the appellants-applicants made submissions that the complainant Smt. Kistu got her statement recorded, wherein, she specially indicated that those who entered the house and gave beating to her, her niece and her father-in-law were wearing black clothes and their faces were covered. However, in her statement as P.W.1, she improved her version and indicated that while giving beating the cloth from their faces came down and she saw the faces. Further, relevant witness; P.W.4 -Narayan Singh, P.W.20 - Bishan Singh and P.W.28 - Dalpat Das Vaishnav, who came at the site after the incident had indicated that the offence was committed by unknown persons/ thief. It was submitted that the accused appellant Ganpat Lal is cousin of husband of said Kistu and in case she had seen him committing offence, as claimed by her in her statement, she would have specifically took his name in the statement before the police (Ex.P.1) and would have told the same to P.W.4, P.W.20 and P.W.28.

4. Further submissions have been made that in the identification parade, Pooja, niece of Kistu did not identify accused Ganpat Lal and only identified accused Sunil and Kistu identified both Ganpat Lal and Sunil.

5. Submissions have been made that in her cross examination, Pooja, P.W.5, specifically indicated that the police personnel identified the accused and told them to identify them.

6. It is submitted that the involvement of the appellants is highly improbable inasmuch as in case Ganpat Lal was involved, the complainant Kistu would have specifically taken his name in the statement before the police and before the other witnesses, who came at the site immediately after the incident and, therefore, the appellants are entitled to be released on bail.

7. Further submissions have been made that the appellants-applicants have already remained in custody for over 08 years and, therefore, also their sentences be suspended and they be released on bail as the hearing of the appeal is likely to take sufficiently long time.

8. Learned Public Prosecutor vehemently contested the submissions. It was submitted that as Smt. Kistu has seen the accused and has identified them during the identification parade and that recovery of cash has been made from the accused, the applications deserve dismissal.

9. Having considered the submissions made by learned counsel for the parties, in view of the fact that appellants are in custody for over 08 years and the fact that hearing of the appeal is unlikely in near future, without making any observations on merits of the case, we are inclined to suspend the sentence of the appellants-applicants Sunil @ Pintu s/o Himmat Lal and Ganpat Lal s/o Bhikharam during the pendency of the appeal.

10. Accordingly, the instant applications for suspension of sentence filed under Section 389 Cr.P.C. are allowed and it is ordered that sentence passed by the Addl. Sessions Judge, Pali in Case No. 74/2015 (CIS No. 54/2015) against the appellants-applicants Sunil @ Pintu and Ganpat Lal shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail, provided they executes a persona