ORDER
Shiv Narayan Dhingra, J.
1. This application under Section 389 Cr.P.C. has been made, for suspension of sentence, by the appellant, who has been convicted under Section 376 read with Section 506 IPC. The appellant was sentenced to 12 years imprisonment and a fine of Rs.10,000/- by the Trial Court. It is submitted by the counsel for appellant that the appellant was in custody for more than 06 years including remission period. He was granted interim bail twice in July, 2006 and October, 2006 by this Court and he did not misuse the bail.
2. The counsel for appellant has relied upon Akhtari Bi (SMT) v. State of MP , Harbhajan Singh and Ors. v. The State of Punjab 1977 Crl.L.J. 1424 and Bhagwan Rama Shinde Gosai and Ors. v. State of Gujarat to impress upon the Court that since he had already undergone half of the sentence and there was no likelihood of appeal being heard, his sentence should be suspended.
3. A perusal of record would show that appellant was convicted for committing a rape of child aged about 06 years and he was sentenced to 12 years imprisonment. A perusal of judgment shows that trial court had considered all the aspects and the judgment was based on cogent reasons. Suffice it to say that this application of the appellant cannot be entertained by analyzing the evidence at this stage considering the heinousness of the crime and the victim being a child of 06 years of age. I consider it would not be appropriate to suspend the sentence. I find support for the view that heinousness of the crime and the circumstances of the case are to considered for suspending the sentence, from the judgment of Supreme Court in case Gomti v. Thakurdas and Ors. 2007 Crl.L.J. 2431 wherein Supreme Court observed as under:
9. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.
10. The appellate Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.
11. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.
12 In Vijay Kumar v. Narender and Ors. and Ramji Prasad v. Rattan Kumar Jaiswal and Anr. , it was held by this Court that in cases involving conviction under Section 302, IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar’s case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.
13. The above position was highlighted in Kishori Lal v. Rupa and Ors. and in Vasant Tukaram Pawar v. State of Maharashtra .
4. I hereby dismiss the application. However, the appeal is pending since 2004, it is directed that the appeal be listed for hearing in the Regular List of week commencing 12th November, 2007.