Harsilal vs State

The instant application for suspension of sentences under Section 389 CrPC has been preferred on behalf of the appellant-applicant Harsilal S/o Devphool, who has been convicted and sentenced as below vide the judgment dated 31.01.2019 passed by the learned Special Judge, Protection of Children from Sexual Offences Act Cases and Protection of Child rights Commission Act, 2005, Jodhpur District, Jodhpur in Sessions Case No.13/2018 :

Offences for which convicted

Sentence, fine and default sentence awarded

Section 5(F)(J)(ii) (L) of the POCSO Act, 2012

Life imprisonment alongwith a fine of Rs.10,000/- and in default of payment of fine, further to undergo simple imprisonment of three months

Section 312, 315 read with Section 114 IPC

For each count, rigorous imprisonment of three years alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo additional simple imprisonment of one month

Learned Public Prosecutor has placed on record the custody certificate of the appellant as received from the Central Jail, Jodhpur, as per which, he had suffered the imprisonment of 9 years 11 months and 15 days as on 19.05.2022.

We have heard and considered the submissions advanced by the learned counsel Mr. L.K. Ramdhari, representing the appellant, and the learned Public Prosecutor and have gone through the material available on record.

It may be stated here that the first application for suspension of sentences filed on behalf of the appellant was rejected by this court on 15.10.2019. Since then, the appeal has not been taken up for hearing even once. The appellant has been convicted for the above offences with an allegation that he subjected the alleged victim Mst. ‘K’ to aggravated sexual assault as a result whereof, she conceived and thereafter, the appellant facilitated her abortion.

Learned counsel Mr. Ramdhari urged that ex facie, there is no material on record of the case to show that the victim was less than 18 years of age on the date of the incident. The incident took place in the year 2013, at which point of time, the offences under the POCSO Act were not punishable with minimum sentence of life imprisonment. The minimum sentence which was prescribed at the relevant point of time for the offences alleged was 10 years, which could extend to life imprisonment. Mr. Ramdhari urged that the trial court has assigned no reason whatsoever to award life imprisonment to the appellant. He submitted that in view of the remote chances of the appeal being heard in near future, the appellant deserves indulgence of bail during the pendency of the appeal.

Learned Public Prosecutor, on the other hand, vehemently and fervently, opposed the submissions advanced by the appellant’s counsel. Nonetheless, he too is not in a position to dispute the fact that as per the custody certificate, the appellant has remained incarcerated well in excess of 10 years as on date.

As per the statement of the victim Mst. ‘K’, the first instance of her being subjected to sexual assault took place 5 months before lodging of the report. The first application for suspension of sentences filed on behalf of the appellant was rejected by this court on 15.10.2019. However, the appeal has not been taken up for hearing even once thereafter. Hence, there is a remote possibility of the matter being heard finally in the near future.

In this background and considering over all facts and circumstances as available on record and more particularly, the prolonged custodial period suffered by the appellant, we are inclined to suspend the sentences awarded to him by the trial court.

Accordingly, the application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge, Protection of Children from Sexual Offences Act Cases and Protection of Child rights Commission Act, 2005, Jodhpur District, Jodhpur vide judgment dated 31.01.2019 in Sessions Case No.13/2018 against the appellant-applicant Harsilal S/o Devphool 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 11.11.2022 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

That he will appear before the trial Court in the month of January of every year till the appeal is decided.

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.

Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

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.