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2021 DIGILAW 2321 (RAJ)

Barkat Kha v. State of Rajasthan

2021-12-14

DEVENDRA KACHHAWAHA

body2021
JUDGMENT Devendra Kachhawaha, J. - Heard. Admit. Issue notice. Learned Public Prosecutor puts in appearance on behalf of the respondent (State), therefore, notices need not to be issued. Record already received. 2. Heard learned counsel for the appellant-applicant, learned Public Prosecutor and learned counsel appearing on behalf of the complainant, on application (No.745/2021) for suspension of sentences. 3. Learned Public Prosecutor does not want to file the reply on the application for suspension of sentences. 4. By the instant application preferred under Section 389 Cr.P.C., appellant-applicant has craved for suspending the sentences handed down by learned Special Judge, POCSO (Prevention of Children from Sexual Offences) Act, 2012, Jodhpur Metro (for short, ?learned trial Court?), by its verdict dated 26.10.2021 in Sessions Case No.76/2018. Learned trial Court, by the aforesaid verdict, convicted the appellant-applicant for offence under Section 5L/6 read with Section 16/17 of the POCSO (Prevention of Children from Sexual Offences) Act. 5. Arguing on the application for suspension of sentences, it is submitted by learned counsel that there is an allegation of abetment against the appellant-applicant; main allegation of rape has been levelled against the co-accused Shakoor Kha and not against the present appellant-applicant; appellant-applicant has been handed down a sentence of ten years? Rigorous Imprisonment with a fine of Rs.10,000/-; during the trial, appellant-applicant remained on bail; final decision of the appeal is likely to take considerable time, and, therefore it would not be appropriate to keep appellant-applicant under further incarceration. 6. Per contra learned Public Prosecutor and learned counsel appearing on behalf of the complainant have fervently and vehemently opposed the application for suspension of sentences of the appellant-applicant and stated that there is a specific allegation against the appellant-applicant that he has called the victim and due to effective help of the appellant-applicant, offence has been committed by the co-accused, Shakoor Kha. 7. Although, as per arguments, during the trial, appellant-applicant remained on bail and trial will take sufficiently long time, therefore, I feel inclined to accept this application for suspension of sentence. 8. 7. Although, as per arguments, during the trial, appellant-applicant remained on bail and trial will take sufficiently long time, therefore, I feel inclined to accept this application for suspension of sentence. 8. Accordingly, the application for suspension of sentence (No.745/2021) filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by learned Special Judge, POCSO (Prevention of Children from Sexual Offences) Act, 2012, Jodhpur Metro, vide judgment dated 26.10.2021 in Sessions Case No.76/2018 against appellant-applicant, Barkat Kha S/o Jiye Khan, 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.60,000/- with two sound and solvent sureties of Rs.30,000/- (one surety shall be a close relative) each to the satisfaction of the learned trial Judge for his appearance in this Court on 15.01.2022 and whenever ordered to do so till disposal of the appeal, on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January 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 address(s), they will give in writing their changed address to the trial Court. 9. The learned trial Court shall keep the record of attendance of 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 purposes 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.