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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