IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 25 OF 2008 IN CRIMINAL APPEAL NO. 7 OF 2008 SHRI. VENKATESH NAIDU PRESENT UNDERGOIN SENTENCE AT CENTRAL JAIL AGUADA ... Applicant Versus S T A T E ... Respondent Mr. Arun Bras De Sa, Advocate for the Applicant. Ms. W. Coutinho, Public Prosecutor for the Respondent. Coram:- N. A. BRITTO, J. Date:- 23rd June, 2008 P.C.: The applicant herein seeks suspension of sentence imposed upon him and release on bail during the hearing and final disposal of the appeal which has been admitted by this Court by order dated 8/02/2008. 2. The applicant who was charged and tried under Sections 363, 376 IPC and Section 8(2) of the Goa Children Act, 2003 was acquitted under Section 363 but has been convicted under Section 376 IPC and Section 8(2) of the said Goa Children Act, 2003. The accused has been sentenced to imprisonment of 10 years and directed to pay a fine of Rs. 2 lacs, or in default to undergo further imprisonment of one year. 3. Counsel on behalf of the applicant submits that the offence under Section 376 IPC and under Section 8(2) of the Goa Children Act, 2003 was committed on 3rd and 4th July, 2004 and at the relevant time, the Goa Children Act, 2003 provided for a minimum sentence of 7 years and the amendment providing for a minimum sentence of 7 years came into force from the year 2005, and, therefore could not be imposed upon the applicant. Learned Counsel further submits that the proviso to sub-section (1) of Section 376 also stipulates that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 7 years. Learned Counsel further submits that considering that the victim was 13 years of age and the applicant was about 19 years of age at the time of the commission of the offences and considering further that they were both in love, the sentence imposed is highly disproportionate to the crime committed. Learned Counsel therefore submits that the sentence imposed upon the applicant is bound to be reduced at the hearing of the appeal filed by the applicant. Learned Counsel also submits that the applicant was on bail throughout the trial. 4. On the other hand, the learned Public Prosecutor on behalf of the respondent, placing reliance on the case of KISHORI LAL V/S. RUPA AND ORS. (2004 AIR SCW 7409) submits that the mere fact during the period of the trial, the applicant was on bail and there was no misuse of liberty, is no reason for suspension of execution of sentence and grant bail to the applicant. 5. Learned Public Prosecutor has also referred to an unreported judgment of this Court dated 14/03/2008 in Criminal Misc. Application No. 54/2008 in the case of MR. LALMAND NABHIK CHAUDHARY V/S. STATE and has submitted that this Court was pleased to refuse the suspension of sentence of 10 years imposed under Section 376 IPC in the case. Learned Public Prosecutor has also made reference to another unreported judgment dated 9/06/2008 in Criminal Misc. Application No. 120/2008 in the case of ASSIS CARDOZ V/S. STATE. 6. I have perused the judgments relied upon by the learned Public Prosecutor. No facts of two cases can be the same or similar. Prima facie, the quantum of sentence imposed upon the applicant herein cannot be justified and considering the respective ages of the victim and the applicant, and the circumstances under which they were committed, the sentence imposed appears to be disproportionate and considering the same, in my view this is a fit case for suspension of the sentence and admit the accused to bail 7. The application therefore is hereby granted. Applicant shall be released on bail upon the execution of bond of Rs. 15,000/- with one surety in the like amount to the satisfaction of the learned trial Court. N. A. BRITTO, J. NH