IMPORTANT POINT
The right to life and liberty of an individual, including accused/convicts, continues during the appeal period, necessitating humane treatment and medical care.

JUDGMENT

1. This petition has been filed by the petitioner, who is in jail under Section 389(1) of Cr.P.C. praying for releasing him on bail by suspending the sentence dated 19.10.2018 pending criminal appeal.

2. By the judgment dated 16.10.2018, the learned Special Judge (POCSO), Imphal West, convicted the petitioner under Section 6 of the POCSO Act, 2012 and by the order dated 19.10.2018, he was sentenced to undergo 20 years rigorous imprisonment and to pay fine of Rs.30,000/-, in default to undergo 6 months simple imprisonment.

3. The petitioner has preferred jail appeal. Along with the appeal, he has filed the present petition seeking to suspend the sentence stating that during the course of trial, the learned trial Judge had violated the mandatory provision provided in Section 35(2) of the POCSO Act, 2012 and the petitioner was wrongly implicated by the complainant in view of the earlier enmity.

4. The learned counsel for the petitioner submitted that the petitioner is a patient who has been suffering from failure of right kidney, calculi on the gall bladder, spinal cord problem and other serious bodily injuries, which were made caused from the shot with gun on different parts of body of the petitioner by some unknown persons on 8.8.2017. He would submit that the petitioner is unable to freely sit, stand and sleep without waist belt because of his ailment on spinal cord due to such bullet injuries.

5. The learned counsel further submitted that in the jail too, the petitioner is facing such problem and his conviction was made ahead of one day of his admission in RIMS hospital for removal of right kidney as well as for removal of gall bladder by performing major operation. His failed right kidney has become crucial day by day in the jail as removal of his right kidney and gall bladder by performing major operation was become failed due to his conviction on 16.10.2018.

6. The learned counsel urged that if the petitioner is not released on bail +pending disposal of the appeal, his life will be shortened within a short duration due to becoming more serious than earlier of his failed right kidney. Thus, a prayer is made to grant bail in the pending appeal to save the life of the petitioner.

7. The learned counsel for the petitioner next submitted that there are lot of infirmities in the impugned judgment and that the petitioner has a good case on merits in succeeding the appeal. He would submit that the petitioner is the sole bread winner of his family consisting of his wife and four daughters and he has to look after them. He would submit that the petitioner was in jail from 19.10.2018, apart from judicial custody during trial.

8. The learned counsel then submitted that the appeal would not be taken up for hearing in the near future and, therefore, the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this Court.

9. Per contra, the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence taking into consideration the sexual assault upon the victim, who is a minor girl aged 3 1/2 years at the time of occurrence.

10. As far as the ailment alleged by the petitioner is concerned, the learned Additional Public Prosecutor submitted that in the jail lot of facilities are available to treat the petitioner and, therefore, there is no necessity for the petitioner in taking treatment outside the jail.

11. By placing reliance upon the decision of the Hon'ble Supreme Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others, (1994) 6 SCC 731, the learned Additional Public Prosecutor submitted that where the under trial accused is charged with an offence under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years prov