ORDER :

Farjand Ali, J.

Heard learned counsel for the accused-appellant and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dated 04.03.2021 passed by Special Judge, POCSO Act 2012 No.1, Jaipur Metropolitan First Jaipur (Raj.) in Sessions Case No.188/2019(CIS No.602/2020) whereby the accused-appellant has been convicted for the offence punishable under sections ¾ POCSO Act and has been sentenced with maximum of ten years rigorous imprisonment along with fine 25,000/-.

2. Learned counsel for the appellant submits that there was a dispute between the appellant and the complainant in respect of some amount which the claimant was claiming from him in lieu of the services rendered by him but when the dispute aggravated, he, upon instigation by other rival person, made a false complaint. There is major contradiction and discrepancy in the case which goes to the root of the case and makes the entire story of the prosecution highly suspicious. It is submitted that the FIR came to be lodged after five years of the incident but no explanation has been furnished in this regard, thus, possibility of false implication and embellishment cannot be ruled out. He further submits that even in the belatedly filed FIR, he states that after pursuing the daily routine cause he went to the Government Hospital park to have a slumber in the night. The accused appellant made him to take some contaminated powder under the influence of which he went into an inebriated condition and in the wee hours, around 2am in the night, he was subjected to sodomy. On the contrary, when he was examined under Section 164 Cr.P.C., he set up a very different story according to which he was intoxicated and was made to smoke a puff of beedi (cigarette). When he was examined in the trial, he made further improvements and therefore, it would not be safe to convict a person on the basis of such incredible evidence. The trial is likely to take long time to conclude. Therefore, the application for suspension of sentence may be granted.

3. Learnedpublic prosecutor has vehemently opposed the prayer made by learned counsel for the accused-appellant for releasing the appellant on application for suspension of sentence.

4. Considering the overall submissions of the parties 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 sentence passed by the Special Judge, POCSO Act 2012 No.1, Jaipur Metropolitan First Jaipur (Raj.) in Sessions Case No.188/2019(CIS No.602/2020) vide judgment dated 04.03.2021 against the appellant-applicant-Ram Prasad Sahu Son of Suwalal 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 his appearance in this court on 13.02.2023 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 applicant changes the place of residence, he will give in w