State Of Rajasthan, Through P.p v. For

: Ms. Akriti Mathur For Respondent(s) : Mr. Vivek Sharma, AGA with Mr. Aman Kumar HON'BLE MR. JUSTICE FARJAND ALI (Through Video Conferencing) Order 13/02/2025

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 25.10.2018 passed by the learned Special Judge, Protection of Children From Sexual Offences Act, 2012 and the Commission For Protection of Child Right Act, 2005 No.2 Ajmer in Sessions Case No.06/2018 (222/2017) CIS No.133/2018 whereby he was convicted and sentenced to suffer maximum imprisonment of 10 years R.I. under Sections 376, & 376 (2)(i) of IPC and under Section 5(m)/6 of POCSO and lesser punishment for the other offences under Sections 342, 363 & 366A of IPC.

2. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual [2025:RJ-JP:6484] (2 of 5) [SOSA-528/2024] aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the petitioner on application for suspension of sentence.

4. Heard and perused the material available on record.

5. This is second application for suspension of sentence moved on behalf of the accused-applicant who was convicted for the offences under Section 376 & 376(2)(i) of the IPC and sentenced to suffer 10 years of rigourous imprisonment. Out of total 10 years, till date he has served around seven years but there seems no hope of hearing the appeal in a near future. Looking to the voluminous pendency of criminal appeals in this Court, there is no likelihood of haring the appeal in one or two more years. His first application for suspension of sentence was dismissed by this Court vide order dated 10.02.2023 and whereafter one more year has elapsed.

6. Ms. Akriti Mathur, learned counsel appearing for the applicant vehementally and fervently urged that from the evidence brought on record, the prosecution has miserably failed to prove its case beyond every shadow of reasonable doubt. The [2025:RJ-JP:6484] (3 of 5) [SOSA-528/2024] discrepancy and incongruency appearing in the testimony of the victim and the conflict in between the medical and ocular evidence suggesting that a false case has been foisted against the applicant for some oblique reason.

7. She drew the attention of this Court towards the statement of PW-3 who is the victim of this case. In an unambiguous term she has stated in her on oath statement that there was an attempt to commit rape this reflects that as such the offence of rape was not committed. Even having the above evidence on record, the learned trial Court convicted the accused for the allegation of committing an offence of rape. The medical examination of the victim i.e. exhibit P.2 does not verify the allegations mentioned in the FIR or in the statement recorded during investigation. The statement of DW-1 Mastram who was the Sarpanch of the village panchayat suggesting that a false case has been foisted against the applicant. The presence of this witness DW-1 is verifying as per the testimony from the statement of PW-4 Shakthi Ram who even in his examination in chief has stated that Sarpanch Mastram had reached the spot when the incident took place. In this situation why his deposition be discarded would be a question to deliberate upon.

8. In view of the major contradiction in between the two material witnesses and in view of the fact that out of 10 he has served around seven years of imprisonment and there is no hope of hearing of appeal in a near future, this Court feels [2025:RJ-JP:6484] (4 of 5) [SOSA-528/2024] that if the applicant is not released on bail, the very purpose of filing the appeal would be frustrated.

9. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the facts/fact that the hearing of appeal is likely to take further more time and considering the overall submissions 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- petitioner.

10. 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 learned Special Judge, Protection of Children From Sexual Offences Act, 2012 and the Commission For Protection of Child Right Act, 2005 No.2 Ajmer who passed the impugned order 25.10.2018 in Sessions Case No.06/2018 (222/2017) CIS No.133/2018 against the petitioner-applicant- Ashok S/o Shri Ishwarlal 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 17.03.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- [2025:RJ-JP:6484] (5 of 5) [SOSA-528/2024] (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 writing his changed address to the trial Court as well as to the counsel in the High Court. (3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

11. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. Samvedana/35 (FARJAND ALI),J