CAV Order

Reserved on :: 22/01/2021 Pronounced on :: 25/01/2021 Reportable

1. Instant application filed under Section 389 of the Code of Criminal Procedure, being 5th Application for Suspension of Sentence has come up for consideration before this Court. Applicant’s three previous applications have been rejected by Coordinate Benches of this Court and last one by this Court.

2. The previous application for suspension of sentence (4th) was rejected by this Court on 21.05.2020, observing thus:-

“Having regard to the seriousness of the offence and clear findings recorded by the Court below, this Court is not inclined to suspend the sentence awarded to the petitioner, simply because he has served out half of the sentence.

Petitioner’s three successive bail applications have already been rejected.

The fourth application for suspension of sentence is dismissed, for the reasons noted above.”

3. Mr. Kalu Ram, learned counsel for the applicant, came up with the specific case that the applicant, who has been convicted for the offence under Section 376 IPC, vide judgment dated 27.09.2017, passed by the learned Additional District & Sessions Judge, Balotra in sessions Case No.31/2016, has already served sentence of 5 years 2 months, out of the total sentence of 7 years, and thus, he is entitled to be enlarged on bail in light of various orders passed by this Court and Hon’ble the Supreme Court. In support of his submission so made, learned counsel relied upon the following orders:-

(i) Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr., reported in 2018 Cr.L.R. (SC)

251;

(ii) Salim Javed Vs. State of Rajasthan, reported in (2006) 9 SCC 602;

(iii) Akhtari Bi Vs. State, reported in (2001) 4 SCC

355;

(iv) Order dated 23.07.2019, rendered in the case of Bhura Ram Vs. State, S.B. Criminal Misc. Suspension of Sentence Appl. (Appeal)

No.588/2019;

(v) Order dated 09.11.2011, rendered in the case of Vagta Ram Vs. State of Rajasthan, reported in

2012(3) CJ (Cri.)(Raj.) 1346; and (vi) Order dated 28.05.2020 rendered in the case of Hansraj Vs. State of Rajasthan, S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.781/2017.

4. Learned counsel further submitted that, when this Court had rejected applicant’s previous application on 21.05.2020, the applicant had completed 4 years and 3 months in jail but considering the fact that he had criminal antecedents and had not completed 5 years’ sentence, his sentence was not suspended.

5. Highlighting that as many as 19 other cases were pending against the applicant; all the cases were for the offences under Sections 457 and 380 IPC and in all the cases, he has been acquitted, Mr. Bhati argued that the applicant has been falsely implicated even in the present case.

6. Learned counsel also urged that on two occasions, when the applicant remained on parole, his behaviour has been good and he did not indulge in any offence.

7. Mr. Vikram Sharma, learned Public Prosecutor, on the other hand, opposed the applicant’s prayer of suspending the sentence and contended that the applicant has been convicted for a henious crime, viz., rape and thus, his sentence should not be suspended simply because he has served more than five years’

imprisonment.

8. Learned Public Prosecutor further submitted that the Trial Court’s order is infallible and there is no likelihood of the aplicant’s appeal being allowed. He vehemently argued that not only the first application for suspension of sentence was dismissed, finding no prima-facie case in applicant’s favour, even the previous application for suspension of sentence was rejected after thoroughly examining the matter on merit. He added that nothing has changed since May, 2020, for which the applicant’s sentence should be suspended.

9. Heard.

10. Upon perusal of the orders/judgments, which have been relied by Mr. Bhati, it is apparent that the Courts having found that the concerned applicant has served more than half of the sentence or 5 years’ imprisonment, have granted benefit of suspensio