RAJ @ RAJU CHOUDHARY @ SATYENDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused -applicant has moved this fourth application under Section 389 Cr.P.C. for suspension of sentence qua the judgment of conviction dated 12.10.2010 in Sessions Case No.130/2008 passed by the Additional District & Session Judge (Fast Track) No.1, Jaipur District Jaipur, whereby the accused -applicant has been convicted, apart from others, for an offence under Section 376(2)(g) IPC and has been sentenced to 10 years' rigorous imprisonment. Earlier applications filed by the accused -applicant for suspension of sentence were considered and dismissed by this Court on merit. The present application for suspension of sentence has been filed only on the ground that the accused -applicant has already served sentence about six years including remission as against the sentence of ten years inflicted by the trial court.

(2.) THE counsel for the accused -applicant has submitted that the accused -applicant was sentenced to 10 years' rigorous imprisonment out of which he has already suffered about six years, including remission, in jail. It is submitted that the delay in hearing of the appeal is not attributable to the applicant but it appears to be occasioned by the heavy dockets of the Court. Counsel submits that the appeal filed against the judgment of conviction has the potential being allowed and in the event of it being so allowed and the applicant acquitted, there would be no recompense for the applicant for having suffered a long incarceration. Counsel submits that even this possibility as a ground was available in the first instance, yet the passage of over five years of actual incarceration by itself adds substantial weight thereto and now furnishes a good ground for suspension of sentence on this fourth application. It has been submitted that willy nilly, a similar argument has prevailed in the case of Salim Javed vs. State of Rajasthan, 2006 9 SCC 602 wherein the Hon'ble Supreme Court in respect of conviction for the offences under Sections 304 -B and 498 -A IPC where the accused was visited with sentence of rigorous imprisonment of 7 years, on his having served 3 years and 6 months of the sentence, was pleased to grant the indulgence of suspension of sentence as the Hon'ble Court concluded that in the facts obtaining, there appeared to be no chance of the appeal of the accused being heard in the near future. Counsel submits that similar consideration ought to prevail with this Court in the facts as obtaining. Counsel for the accused -applicant pointed out that in the event the appeal were to be dismissed, the accused -applicant would be available for suffering the remaining sentence. Conversely, there would be no way to reimburse the accused -applicant for his lost years if even the appeal were to be allowed.

(3.) MR . Prakash Thakuriya, Public Prosecutor appearing for the State has submitted that the accused -applicant is a convict in respect of a serious offence under Section 376(2)(G) IPC. He submits that court's delay in disposal of the appeal against the judgment of conviction by itself cannot entail the exercise of discretion of this Court in favour of the accused -applicant for suspension of sentence. It is submitted that earlier three applications for suspension of sentence were dismissed on merits and there is no change to warrant the indulgence to the accused -applicant on a fourth application for suspension of sentence. Counsel submits that "default bail/ suspension of sentence" by the failure of the court to address the appeal of the accused even within reasonable time is not a right recognised in the law.