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2022 DIGILAW 157 (MAN)

Huidrom Bheigya Singh v. State of Manipur

2022-08-12

M.V.MURALIDARAN

body2022
JUDGMENT 1. This petition has been filed by the petitioner under Section 389(1) Cr.P.C. praying to suspend the judgment of conviction dated 9.10.2017 and the order of sentence dated 12.10.2017 passed by the learned Special Judge (POCSO), Imphal West in Special Trial (POCSO) Case No.4 of 2016 and to release the petitioner on bail during the pendency of the appeal. 2. The petitioner, who has been arrayed as an accused in Special Trial (POCSO) Case No.4 of 2016 on the file of the learned Special Judge (POCSO), Imphal West, was convicted under Section 4 of the Protection of Children from Sexual Offences Act, 2012 by the judgment dated 9.10.2017 and listed the case on 12.10.2017 for sentence hearing. On 12.10.2017, the petitioner was produced before the learned Special Judge, Imphal West and after hearing the petitioner and his counsel, he was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay fine of Rs.20,000/- under Section 4 of POCSO Act and in default to undergo six months simple imprisonment. The learned Special Judge also ordered that the said fine amount if deposited, the same shall be given to the victim girl as compensation. That apart, the learned Special Judge also recommended for provision of victim compensation to the tune of Rs.2.00 lakh under Section 357A of Cr.P.C. to the victim. The learned Special Judge also ordered the period which has already undergone by the petitioner in the judicial custody during the period of investigation as well as during the trial, if any, shall be set-off from the sentence awarded. 3. Aggrieved by the conviction and sentence imposed on the petitioner, he has filed Criminal Appeal No.5 of 2021 before this Court. Along with the appeal, the petitioner has filed petition seeking to suspend the sentence stating that he has a very good case on merits and is likely to succeed in the appeal filed by him. 4. Ms. L. Sillori, the learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits to succeed. He would submit that the petitioner is in jail since from lodging of the FIR which was about 6 years and 8 months and have to spend another about 4 years and 6 months in the jail. He would submit that the petitioner is in jail since from lodging of the FIR which was about 6 years and 8 months and have to spend another about 4 years and 6 months in the jail. He would submit that spending the time in the jail, there was no criminal record of the petitioner. 5. Ms. Sillori, the learned counsel then submitted that release of the petitioner on bail by suspending the sentence shall not cause any inconvenience or prejudice to the prosecution. 6. Ms. Sillori, the learned counsel next submitted that the appeal would not be taken up for hearing in the near future and therefore, the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this Court. 7. Ms. L. Sillori, the learned counsel for the petitioner urged that detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and thus prayed for suspension of sentence pending appeal. 8. Per contra, Mr. H. Samarjit, the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence in view of the findings recorded by the trial Court. He would submit that the petitioner has no good case or ground in the appeal to set aside the conviction and the appeal is very much likely to be dismissed. He would submit that the offence committed by the petitioner is very grave and heinous offence committed upon a minor girl of just 9 years which is leaving a deep emotional scar upon the life of the victim which will remain for her whole life. Therefore, the petitioner is not entitled to the benefit of Section 389(1) Cr.P.C. and, thus, prayed for dismissal of the petition. 9. This Court considered the rival submissions and also perused the materials available on record. 10. The petitioner was convicted under Section 4 of POCSO Act. Upon hearing the petitioner, the learned Special Judge sentenced the petitioner to suffer rigorous imprisonment for a period of 12 years and to pay a sum of Rs.20,000/- as fine and in default of payment of fine, the convict shall undergo simple imprisonment for a period of 6 months. The learned Special Judge also recommended Rs.2 lakh as victim compensation in terms of "Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018". The learned Special Judge also recommended Rs.2 lakh as victim compensation in terms of "Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018". The judgment of the trial Court is dated 9.10.2017 and sentence was imposed on 12.10.2017 and according to the petitioner, he was in jail since from 2.9.2015. 11. As could be seen from the grounds of appeal, the petitioner has challenged the judgment of the learned Special Judge on various grounds. The petitioner has raised a ground that the learned Special Judge failed to appreciate the oral testimony of the prosecution witnesses in proper perspective and in view of lot of infirmities and lacuna in the evidence of the prosecution witnesses, the conviction cannot stand. 12. The petitioner also raised a ground that the learned Special Judge erred in convicting the petitioner without the report of the forensic science lab and without completion of chemical examination and in fact the neighbours alleged at the place of incident were not examined by the prosecution. Moreover, at the time of conviction, the petitioner was aged 69 years and the said factum was also not considered by the trial Court. 13. It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. 14. In Bhagwan Rama Shinde Gosai and others v. State of Gujarat, (1999) 4 SCC 421 , the Hon'ble Supreme Court held: '3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted.' 15. In Union of India v. Ram Samujh and another, (1999) 9 SCC 429 , the Apex Court held that the jurisdiction of the Court to grant bail is circumscribed. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of sentence. 16. In the instant case, the petitioner challenged the judgment of the trial Court on various grounds as could be seen from the grounds of appeal and prima facie the petitioner has got arguable case. At this stage, this Court is not concerned with the merits of the appeal and the concern is only with regard to the point whether the petitioner is entitled to suspension of sentence pending appeal. 17. As stated supra, the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai (supra), held that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. 18. Where an appeal is preferred against the conviction under Section 4 of the POCSO Act before the High Court, the High Court has ample power and discretion to suspend the sentence. However, that discretion has to be exercised judiciously depending upon the facts and circumstances of each case. While considering the suspension of sentence, each case has to be considered on the basis of the nature of the offence, the manner in which the occurrence had taken place, whether bail granted earlier had been misused. However, that discretion has to be exercised judiciously depending upon the facts and circumstances of each case. While considering the suspension of sentence, each case has to be considered on the basis of the nature of the offence, the manner in which the occurrence had taken place, whether bail granted earlier had been misused. There is no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict under Section 389 Cr.P.C. 19. In the instant case, the appeal is of the year 2021 and due to practical reasons, the appeal cannot be taken up in the near future and disposed of expeditiously. According to the petitioner, he is in jail from 2.9.2015 and the petitioner has spent considerable time in jail. 20. When an appellate Court is in seizen of an application for suspension of sentence with an assertion that the convict has served half of the sentence, it can take into consideration his criminal antecedents. In the instant case, no criminal record of the petitioner has been produced by the prosecution. 21. Since the petitioner has spent considerable time i.e., nearly 7 years and during that period no criminal antecedents has been shown, this Court is of the view that this is a fit case to suspend the sentence imposed on the petitioner pending appeals, however, subject to stringent conditions. 21. In the light of the decision of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai (supra), and the fact remains that the present appeal would take substantial time to come up for final hearing, without expressing any opinion on the merits of the appeal, this Court is inclined to suspend the sentence imposed on the appellant. 22. Accordingly, the sentence imposed on the petitioner in Special Trial (POCSO) Case No.4 of 2016 dated 12,10,2017 on the file of the learned Special Judge (POCSO), Imphal East alone is suspended, subject to the compliance of the following conditions by the petitioner: (a) The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties in the like sum to the satisfaction of the learned Special Judge (POCSO), Imphal West. (b) The petitioner, on his being enlarged on bail, is directed to report before the learned Special Judge (POCSO), Imphal West on the first working day of every month at 10.00 A.M. without fail. (c) The petitioner is directed to appear before this Court on all hearing dates. (d) The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. (e) The petitioner shall not leave the jurisdiction of the Court and shall ordinarily reside at a place of his residence. (f) In case of violation of any condition, the prosecution may ask for cancellation of bail. (g) It is made clear that this Court has not delved into the merits of the appeal.