An accused may be granted bail during the pendency of an appeal if there is a delay in hearing the appeal and other factors, such as the period of custody and the strength of the prosecution's case, weigh in favor of bail.

Headnote:
SUSPENSION OF SENTENCE - POCSO ACT - FALSE IMPLICATION - DELAY IN HEARING OF APPEAL - BAIL GRANTED
Fact of the Case:

The applicant was convicted under Section 377 IPC and Section 5(m)/6 of POCSO Act, 2012 and sentenced to life imprisonment. He filed an appeal along with an application for suspension of sentence.
Finding of the Court:

The court found that the applicant had been in custody for over 2 years and 10 months, the victim's statement did not name the applicant, and the prosecution had not examined the constable who received the samples taken from the victim. The court also noted that the hearing of the appeal may take a long time.
Issues: Whether the applicant should be granted bail during the pendency of his appeal.
Ratio Decidendi: The court held that considering the facts and circumstances of the case, including the period of custody, the statements of the victim and the Investigating Officer, and the delay in hearing the appeal, it was just and proper to allow the application for suspension of sentence.
Final Decision: The court allowed the application for suspension of sentence and ordered that the execution of the sentence be suspended during the pendency of the appeal. The applicant was admitted to bail subject to the satisfaction of the trial court.

ORDER

27/03/2024

1. This suspension of sentence application has been filed by the applicant along with the appeal.

2. Learned senior counsel for the applicant has annexed the certificate under Rule 311 (3) of the Rajasthan High Court Rules to the effect that during the trial, the applicant was not on bail and the sentence of life imprisonment has been awarded to the applicant under Section 377 IPC and Section 5(m)/6 of POCSO Act, 2012 and he is in judicial custody at Central Jail, Ajmer. He further submits that the applicant has been falsely implicated in this matter. He further submits that the victim (PW-2) in his (2 of 3) [SOSA-1195/2023]

statement recorded during trial has not named the applicant for committing wrong with him. He further submits that the samples (Perianal swab of victim & Anal canal swab of victim) were taken by the Doctor, marked as (Ex.P-19) and the same were handed over to one constable namely Navratan Belt No.05, however, the said constable was not examined by the prosecution during trial, even the Investigating Officer (PW-5) has not mentioned about receiving of the aforesaid samples by him while recording his statement during trial. He further submits that the depositing of samples by the Investigating Officer is doubtful. He further submits that the applicant is a young boy, aged about 24 years and he has served the sentence for a period of more than 2 years & 10 months. He further submits that hearing of appeal may take long time and prayed that sentence awarded to the applicant may be suspended and he be released on bail during the pendency of the appeal.

3. Learned Additional Government Advocate assisted by counsel for the complainant opposed the suspension of sentence application.

4. We have heard counsel for the parties and perused the material available on record.

5 Considering the facts and circumstances of the present case and also considering the period of custody as well as the statements of the victim (PW-2) and Investigating Officer (PW-5) and the hearing of appeal may take long time, We deem it just and proper to allow this criminal miscellaneous suspension of sentence application.

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6. In that view of the matter, this criminal miscellaneous suspension of sentence application is allowed and it is ordered that execution of sentence awarded to the applicant shall remain suspended during the pendency of the criminal appeal and the applicant be admitted to bail subject to satisfaction of the trial Court with the stipulation that he shall appear before this Court on 13.05.2024 and thereafter as and when called upon to do so.

7. Office is directed to send a copy of this order to the concerned trial Court through e-mail/fax for necessary compliance.

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