Alpeshbhai Virchandbhai … vs State Of Gujarat on 9 August, 2017

R/CR.MA/8473/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
8473 of 2017

In CRIMINAL APPEAL NO. 440 of 2017

ALPESHBHAI VIRCHANDBHAI DEVIPUJAK….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)

Appearance:
MR RAJESH M CHAUHAN, ADVOCATE for the Applicant(s) No. 1
MR KL PANDYA, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 09/08/2017

ORAL ORDER

1. The present application is filed under Section 389 of the Code of

Criminal Procedure, 1973 by the applicant-convict for suspension of

sentence imposed upon him vide judgment and order dated 14.02.2017

passed by the learned Special Judge (POCSO) and Additional Sessions

Judge, Banaskantha at Palanpur in Special (POCSO) Case No.46/2014,

whereby the learned Trial Court has convicted the applicant-convict for

the offence punishable under Section 376(N) of the Indian Penal Code

and sentenced to undergo rigorous imprisonment of ten years with fine of

Rs.1,000/-, in default of payment of fine, to undergo further period of

three months rigorous imprisonment and for the offence punishable under

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Sections 3 4 of the Protection of Children From Sexual Offences Act,

2012 (hereinafter referred to as “the POCSO Act” for short), sentenced to

undergo simple imprisonment of seven years with fine of Rs.1000/-, in

default of payment of fine, to undergo further period of three months

simple imprisonment and for the offence punishable under Sections 5 and

6 of the POCSO Act, sentenced to undergo rigorous imprisonment of ten

years with fine of Rs.1000/-, in default of payment of fine, to undergo

further period of three months simple imprisonment and all the sentences

are directed to run concurrently.

2. Heard the learned advocate for the applicant as well as learned

APP for the respondent-State.

3. The learned advocate for the applicant by referring the evidence

adduced before the learned Trial Court submits that there is no prima

facie case against the applicant-convict. Learned advocate for the

applicant, while referring the evidence of some of the prosecution-

witnesses such as prosecutrix, medical evidence and evidence of brother

of the victim-lady PW:3 Sunilbhai Sonajibhai Patni. etc., submits that

though there were many discrepancies in evidence, the learned Trial

Court, without proper appreciation of evidence on record, convicted the

present applicant for the offences punishable under Sections 376(N) of

the Indian Penal Code and Sections 3, 4, 5 6 of the POCSO. It is

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further submitted that the alleged incident has taken place in the year

2014, and thereafter, the victim-lady has married and settled in her

matrimonial life and also having two minor children. It is further

submitted that the applicant is resident of Banaskantha District, whereas

the victim-lady has settled at her matrimonial home at Ahmedabad

District. It is also submitted that the appeal preferred by the applicant is

admitted by this Court and the applicant is having good case on merits

and likely to succeed in the appeal, but chances of early final hearing of

present criminal appeal on account of pendency of old criminal appeals

are very less. It is further submitted that from the evidence of the some of

the prosecution witnesses, prima facie the ingredients of alleged offences

are not attracted qua the present applicant. It is further submitted that the

applicant is a poor person and having responsibility to look after and

maintain his family and further he is not likely to run away or abscond

and his presence can be secured at the time of final hearing of the appeal.

It is also submitted that he will abide by the terms and conditions that

may be imposed by this Court and shall not commit any breach.

Therefore, the applicant may be enlarged on bail by suspending the

sentence imposed by the learned Trial Judge.

4. Learned Additional Public Prosecutor appearing on behalf of the

respondent-State while opposing the present application submits that the

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learned Trial Court, after careful consideration of the material on record,

convicted and sentenced the present applicant. There is sufficient

evidence against the applicant, and therefore, looking to the gravity of

offences, the applicant may not be enlarged on bail.

5. Regard being had to the above submissions and considering the

material placed on record and considering the chances of having early

final hearing of present criminal appeal on account of pendency of

criminal appeals, this Court is of the view that in the facts and

circumstances of the case, discretion is required to be exercised in favour

of the applicant. Hence, the present application is allowed and the order

of sentence imposed by the learned Special Judge (POCSO) and

Additional Sessions Judge, Banaskantha at Palanpur in Special (POCSO)

Case No.46/2014 dated 14.02.2017 shall remain under suspension till the

final hearing and disposal of the main appeal. The applicant is ordered to

be released on bail on his executing a personal fresh bail bond and surety

in the sum of Rs.10,000/- (Rupees Ten Thousand only) to the satisfaction

of the Trial Court on the following terms and conditions that the

applicant:

(a) shall deposit the passport, if any, with the Trial Court, within
a week.

(b) shall not leave the State of Gujarat, but shall not enter in

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Ahmedabad District till final disposal of the appeal without
prior permission of the Sessions Judge concerned;

(c) shall not take undue advantage of his liberty or abuse his
liberty and maintain law and order.

(d) shall furnish latest and permanent address of residence to the
Investigating Officer, and also to the Court at the time of
execution of the bond, and shall not change the residence
without prior permission of this Court;

6. Rule is made absolute accordingly. Direct Service is permitted.

(P.P.BHATT, J.)
rakesh

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