LIMATOSHI Vs. STATE OF NAGALAND

JUDGEMENT

(1.) Heard Mr. Sentiyanger, learned counsel for the appellant who has approached this Court under Section 389 of the Criminal Procedure Code, 1973 praying for release of the appellant-accused Limatoshi on bail, who has been convicted by an order dated 12.06.2014, passed by the learned District and Sessions Judge, Mokokchung convicting the accused for 10 years.

(2.) The accused has served 5 years of effective sentence and has preferred an appeal before this Court and has prayed that the accused may be released pending trial of the application under Section 374, CrPC.

(3.) The learned counsel for the appellant has taken this Court to the various provisions of bail law and also rulings of superior Court wherein, it has been held that when a convicted person is sentenced to a fixed period of sentence and when he files a bail under any statutory right, suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. The learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai and Others vs. State of Gujarat, reported in(1994) 4 SCC 421. Furthermore, he has submitted that the co-accused has been released after acquittal in the said case. Again, as per the Medical Evidence, it is apparent that the hymen has not been torn as per the reports of the Medical Doctor which was examined on the same day of the commission of the offence. The learned counsel is of the contention that there cannot be rape of a minor girl of 7 years without hymen being torn. The accused has al- most completed half years of the effective sentencing on conviction and has preferred a bail application under Section 389, CrPC against the order which is writ with various defects concerning the provisions of law.