Mohan vs State of Rajasthan - 2023 Supreme(Raj) 1748

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 1748

IN THE HIGH COURT OF RAJASTHAN
ARUN BHANSALI, RAJENDRA PRAKASH SONI, JJ.
Mohan - Petitioner
Versus
State of Rajasthan and Ors. - Respondents
D.B. Criminal Misc Suspension of Sentence Application (Appeal) No.857 of 2022 In D.B. Criminal Appeal No.133 of 2022
Decided On : 25-04-2023

Advocates Appeared:
For the Petitioners: Mr. Rajendra Singh Rathore.
For the Respondents: Mr. B.R. Bishnoi, P.P.

Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Section 4 - Indian Penal Code, 1860 - Sections 363 and 366 - Conviction and sentence under child sexual abuse laws - The applicant applied for suspension of sentence during the appeal period, arguing that the prosecution's case lacked credibility and that the victim's age was improperly assessed. The court found merit in suspending the sentence due to the prolonged duration of trial and potential merits in the applicant's claims. (Paras 1, 7, 8)

(B) Criminal Procedure Code, 1973 - Section 389 - The provision allows for suspension of sentence pending appeal when circumstances justify such action, particularly when the appeal may take significant time to be resolved. (Paras 2, 8)

Facts of the case:
The appellant was convicted under IPC and POCSO, sentenced to rigorous imprisonment for multiple offences, and sought bail after being in custody for 4 years pending appeal.

Issues: The core issues revolved around the credibility of the prosecution's statements and the assessment of the victim's age.

Findings of Court:
The court acknowledged the applicant's time in custody and the potential impact of the trial's long duration on the appeal process.

Ratio Decidendi: The court emphasized the necessity to reassess the conviction, highlighting the possibility of prejudicial errors and maintaining that a sentence can be suspended based on the lengthy nature of the appeal process and significant considerations in the case.

Result: Application for suspension of sentence allowed.

Table of Content
1. conviction and sentence details. (Para 1 , 2)
2. arguments for and against suspension of sentence. (Para 3 , 6)
3. inconsistencies in witness statements and age of prosecutrix. (Para 4 , 5)
4. court's consideration of case circumstances. (Para 7)
5. order to suspend sentence and conditions for bail. (Para 8 , 9)

ORDER :

The appellant-applicant herein has been convicted and sentenced as below vide judgment dated 7.11.2019 passed by the learned Special Judge, Protection of Children From Sexual Offences Act, 2012, No.1, Udaipur (Rajasthan) in Special Sessions Case No.68/2018 (CIS 68/2018):

Offences	Sentence	Fine
363 IPC	3 years R.I.	Rs.2,000/- and in default of which to further undergo 2 months R.I.
366 IPC	3 years R.I.	Rs.2,000/- and in default of which to further undergo 2 months R.I.
Section 4 of Act of 2012	L.I.	Rs.5,000/- and in default of which to further undergo 6 months S.I.

2. The appellant-applicant has preferred the application for suspension of sentence under Section 389 Cr.P.C. for release on bail during the pendency of the appeal.

3. It is submitted by learned counsel for the appellant - applicant that the applicant was on bail during pendency of the trial and is already in custody for over 4 years now, the hearing of the appeal is likely to take time.

4. Further submissions have been made that the offence is alleged to have been committed on 18.4.2014, the FIR was lodged on 25.4.2014 inter alia indicating the place of offence at Jungle. Whereafter, in the statements of the prosecutrix recorded under Section 161 Cr.P.C. on 29.4.2014, the same place of occurrence was indicated, however, in the statement recorded under Section 164 Cr.P.C. on 4.6.2014, the place of occurrence was changed to that of the house of one Raju. The Investigating Officer, who was examined as PW/5, when asked about not making the site plan of house of Raju, indicated that when it was not alleged that offence has not taken place at the house of Raju, he did not make the site plan of the said house, which clearly projects that the entire allegations against the applicant are cooked up and the conviction of the petitioner is without any basis.

5. Further submissions have been made that though the claim made about the age of the prosecutrix was 11 years, in the medical report, she has been found to be aged about 16 to 18 years. However, the trial court has not appreciated the said important aspects available on record. It was prayed that the applicant be enlarged on bail.

6. Learned Public Prosecutor opposed the application for suspension of sentence with reference to the injury marks on the prosecutrix.

7. Having considered the totality of facts and circumstances of the case and after carefully scrutinizing the record of the case and likelihood of hearing of the appeal taking substantially long time, without making observation on the merit, we consider it just and proper to suspend the substantive sentence awarded to the appellant - applicant Mohan S/o Homa Gameti, during the pendency of the appeal.

8. Accordingly, the instant application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that sentence passed by the learned Special Judge, Protection of Children From Sexual Offences Act, 2012, No.1, Udaipur (Rajasthan) in Special Sessions Case No.68/2018 (CIS 68/2018) against the appellant-applicant Mohan S/o Homa Gameti, shall remain suspended till final disposal of the aforesaid appeal and she 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 learned trial Judge for his appearance in this court on 24/5/2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:

2. That if

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