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2022 DIGILAW 91 (MAN)

Sarangthem Arunjit Singh v. State of Manipur

2022-05-26

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 operation of the judgment dated 18.03.2019 and the order of sentence dated 30.03.2019 passed by the learned Special Judge (POCSO), Imphal East in Special Trial (POCSO) Case No.12 of 2015 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.12 of 2015 on the file of the learned Special Judge (POCSO), Imphal East, was convicted under Section 4 of the Protection of Children from Sexual Offences Act, 2012 by the judgment dated 18.03.2019 and fixed the matter on 30.03.2019 for sentence hearing. On 30.03.2019, the petitioner was produced before the learned Special Judge, Imphal East and after hearing the petitioner and his counsel, the petitioner was sentenced to undergo rigorous imprisonment for a period of 8 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.5.00 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, the petitioner has filed Criminal Appeal No.13 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. The learned counsel for the petitioner submitted that the petitioner was on bail during trial and he had fully co-operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the trial Court and he never violated any terms and conditions of his releasing on bail during the whole proceedings of the trial. 4. The learned counsel for the petitioner submitted that the petitioner was on bail during trial and he had fully co-operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the trial Court and he never violated any terms and conditions of his releasing on bail during the whole proceedings of the trial. The learned counsel for the petitioner further submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits to succeed in the appeal. He would submit that the petitioner is in jail for more than three years after conviction and spending the time in the jail, there was no criminal record of the petitioner. 5. The learned counsel then submitted that the petitioner was a mason by profession and he is a minor at the time of alleged offence and he is still bachelor and he has to look after his father. He would submit that the release of the petitioner on bail by suspending the sentence shall not cause any inconvenience or prejudice to the prosecution. 6. 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. 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 prays for suspension of sentence pending appeal. 8. Per contra, the learned Government counsel for the respondent 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 there is every possibility of the petitioner absconding in case he is released on bail by suspending the sentence. 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. Further, the learned counsel submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis-a-vis public confidence on judiciary. 10. This Court considered the rival submissions and also perused the materials available on record. 9. Further, the learned counsel submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis-a-vis public confidence on judiciary. 10. This Court considered the rival submissions and also perused the materials available on record. 11. 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 8 years and to pay a sum of Rs.20,000/- as fine under Section 4 of the POCSO Act 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.5 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 18.03.2019 and sentence was imposed on 30.03.2019 and from 30.03.2019 onwards, the petitioner was in jail. 12. The petitioner challenged the judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal. 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. 13. The petitioner also raised a ground that the learned Special Judge erred in convicting the petitioner, as he was born on 30.03.1996 whereas the date of commission of the offence is 14.6.2014. As such, the petitioner being a minor/juvenile on the date of commission of the offence. In other words, the petitioner had not completed the age of 18 years on the date of the commission of the offence. The learned counsel urged that the prosecution did not attempt to collect any school certificate/records to know the date of birth of the petitioner except the Ossification Test Report saying that the age of the petitioner is about 20 years. 14. 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. 15. 14. 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. 15. 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. 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.' 16. 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 by the aforesaid Section of the Act. 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. 17. 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. 17. 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. 18. 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. 19. Where an appeal is preferred against 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. 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. 20. 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. Therefore, this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal, 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. 22. Accordingly, the sentence imposed on the petitioner in Special Trial (POCSO) Case No.12 of 2015 dated 30.03.2019 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 East. (b) The petitioner, on his being enlarged on bail, is directed to report before the learned Special Judge (POCSO), Imphal East on the first working day of every month at 10.30 A.M. without fail, apart from appearing on all hearing dates. (c) The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. (d) The petitioner shall not leave the jurisdiction of the Court and shall ordinarily reside at a place of his residence. (e) In case of violation of any condition, the prosecution may ask for cancellation of bail. (f) It is made clear that this Court has not delved into the merits of the appeal. (g) Both the petitioner and the respondent State are directed to cooperate for early disposal of the appeal.