- (1.) Accused-applicants have laid this application under Section 389 Cr.P.C. for seeking suspension of sentence awarded by Special Judge, POCSO Act Cases, Sirohi (for short, 'learned trial Court') in Sessions Case No.09/2017 (04/2013). Learned trial Court by impugned judgment dated 30th of November, 2017 indicted both the applicants for offence under Sections 363 and 343 IPC as well as Section 3/4 of the POCSO Act and handed down maximum sentence of seven years' imprisonment.
(2.) Arguing on this application for suspension of sentence, it is submitted by learned counsel for the applicants that both the applicants were arrested on 28 th of February, 2013 and since then they are in custody. Learned counsel submits that in view of prolonged custody of the applicants, which is almost of five years, their sentences are liable to be suspended. While referring to the statements of both the prosecutrix, it is submitted by learned counsel that a cumulative reading of their statements the entire prosecution story appears to be highly improbable. Learned counsel also contended that the medical evidence and the statements of doctor, who examined both the prosecutrix, if properly construed, then, offence of rape is seriously questionable. Learned counsel has also contended that in the backdrop of medical examination reports of both the prosecutrix and their statements, their being below age of 18 years is also under serious cloud and as such conviction of the applicants for offence under Section 3/4 of the POCSO Act is debatable. With all these submissions, learned counsel contends that the sentences handed down by learned trial Court may be suspended.
(3.) Per contra, learned Public Prosecutor has vehemently opposed the application for suspension of sentence. It is argued by learned Public Prosecutor that looking to the serious criminal delinquencies of the applicants they are not entitled for suspension of sentence.;