“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 the sentence it is a different matter” it was held in Bhagwan Rama Shinde Gosai and others v. State of Gujarat, (1999) 4 SCC 421, by the honourable Supreme Court, which was referred by Justice M.V Muralidaram in the matter of Shri Konsam Poirei @ Inaoton Singh versus State of Manipur [MC(Cril.Appeal) No.10 of 2019]
The order was passed for the facts where according to the prosecution, on 20 September 2009 a written report was submitted by the prosecutor stating that she eloped for wife with the petitioner’s application on 17 September 2009, as a divorce without a wife or children. The petitioner-appellant was later learned that he had married his wife and children legally, and the petitioner-appellant had coaxed her to have sex and thus rape. The Officer-in-Charge of the SJM Police Station, on the basis of the above-mentioned written report, has recorded FIR bearing No. 185(9)2009 against the applicant under Sections 376/417 IPC. After committing the offences punishable in accordance with Sections 417 and 376 of the IPC, the trial Court brought the applicant charges. Following the recording of the evidence of the Prosecution and of the evidence of defence, the Court of Justice convicted the petitioner-appellant of the vide decision of the MC(cri.appeal) No. 10 of 2019, page 2 6.5.2019. The applicant-appellant requested suspension of sentence in opposition to the conviction and sentence lodged the criminal appeal and pending appeal.
The learned counsel of the petitioner and appellant submitted then that both the petitioner and the prosecutor were very willing to marry the prosecutrix, and that is evident from his statement that both the petitioner and the prosecutor went to the office of the marriage registrar to register their matrimony. The learned advocate also stated that the Prosecutrix accompanied him on his motorcycle from Tera to Thubal after eloping him with the petitioner accused on 17.09.2009. While in Thoubal Houkha, the police, who came down from Singjamei Police Station, arrested them. So it is clear that if the Public Prosecutor does not like the petitioner, during her journey from Tera to Thoubal, MC(cri.appeal) No. 10 of 2019, she might have raised her voice. In fact, the public prosecutor joined the petitioner with their own consent and, only after the police arrest, changed their minds because the opinions of their family members were influenced and the complainant lodged, and the trial court could not take the above mentioned actual stance into consideration in the contested sentence.
The learned petitioner-appellant counsel argued that in convicting and convicting a petitioner-appellant for offences punishable pursuant to sections 417 and 376 of the IPC the trial Court had made gross errors. He would argue that the Court did not recognise the grave delay of the investigating officer and that at the time of the alleged act of rape which was claimed committed by the petitioner, the investigating officer did not seize clothes worn by the prosecutor. The investigating officer did not actually visit the site where the rape/sexual intercourse was reportedly committed against her by the petitioner-appellant.
In the instant case, the petitioner-appellant challenged the judgment of the trial Court on various grounds as could be seen from the grounds of appeal.
Having regard to the Hon’ble Supreme Court decision (supra) in the case of Bhagwan Rama Shinde Gosai, and the fact that the present appeal will need considerable time to arrive at the last hearing, this Court shall be willing to suspend, subject to stringent conditions, the judgement against the appellant.
Therefore, this application for suspension of sentence is allowed, which states that until the final disposal of Criminal Appeal No. 16 of 2019, the substantive judgement passed in Session Trial (CAW) No. 15 of 2017 is to be suspended until the applicant’s personal bonds remain with the final disposition of Criminal Appeal No. 16 of 2019. It is made clear that this Court has not delved into the merits of the appeal and the opinion expressed by this Court is, prima facie, and shall not prejudice the final hearing of the appeal in any manner.
