Vipul @ Kalu vs State Of Rajasthan

Learned Public Prosecutor has chosen not to file reply to this application for suspension of sentences and proposes to argue the matter orally.

Heard learned counsel for the applicant, learned Public Prosecutor and learned counsel representing the complainant. Perused the material available on record.

The appellant applicant herein stands convicted for the offences under Sections 363, 366 IPC, Section 7/8 of the POCSO Act and Section 3(2)(v) of the SC/ST Act vide judgment dated 01.12.2018 passed by the learned Special Judge, POCSO Act Cases, Sirohi in Sessions Case No.17/2015 (43/2017). He has been sentenced to life imprisonment.

Learned counsel Shri Rathore submits that even if the highest allegations set up in the prosecution case are accepted to be true on the face of the record, manifestly, the prosecution witnesses have not come out with a case that the accused committed the offences under the Indian Penal Code or the POCSO Act with the minor victim with intention that he was committing such an act upon a member of the Scheduled Caste. He thus urges that ex-facie, conviction of the applicant appellant for the offence under Section 3(2)(v) of the SC/ST Act is bad in the eye of law and is bound to be struck down. He further submits that the appellant has also available to him, strong and plausible ground for assailing his conviction for the remaining offences under Sections 363 and 366 IPC and Section 7/8 of the POCSO Act. He further submits that hearing of the appeal is like to consume time. He thus craves acceptance of the application under Section 389 Cr.P.C. and seeks suspension of sentences awarded to the appellant during pendency of the appeal.

Per contra, learned Public Prosecutor and learned counsel representing the complainant vehemently opposed the submissions advanced by the defence counsel. However, they too are not in a position to dispute the fact that there is no allegation whatsoever of the prosecution witnesses that the accused committed the offences under the Indian Penal Code and the POCSO Act with an intention that he was committing the offending acts with a member of the Schedule Caste.

In this background, we are of the firm opinion that ex-facie, the conviction of the appellant for the offence under Section 3(2)(v) of the SC/ST Act is seriously debatable. The appellant appears to have strong reasons for assailing his conviction for the remaining offences as well. He was on bail during trial and did not misuse the liberty so granted to him.

In this background and having regard to the entirety of facts and circumstances as emerging from record, without commenting on the merits of the case, we are inclined to accept this application for suspension of sentences.

Accordingly, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the Special Judge, POCSO Act Cases, Sirohi, vide judgment dated 01.12.2018 in Sessions Case No.17/2015 (43/2017) against the appellant-applicant Vipul @ Kalu son of Shri Ramesh Kumar @ Kishore Banzara, 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 18.02.2019 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their 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(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were 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(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.