Kanubhai Ravjibhai Patoliya vs State Of Gujarat on 19 September, 2017

R/CR.MA/22076/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 22076
of 2017

In CRIMINAL APPEAL NO. 1576 of 2016

KANUBHAI RAVJIBHAI PATOLIYA….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)

Appearance:
MR HITESH S PADHYA, ADVOCATE for the Applicant(s) No. 1
MS MONIKA H PANCHAL, ADVOCATE for the Applicant(s) No. 1
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE P.P.BHATT

Date : 19/09/2017

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 02.03.2016 passed by the learned Special Judge

(POCSO), Amreli, in Special (POCSO) Case No. 23 of 2014

whereby the learned Sessions Judge has convicted the

applicant for the offence punishable under Sections 376 and

506(2) of the Indian Penal Code as well as under Section 4,

5(M)(N) read with Section 6 and Section 8 of the POCSO Act,

2012 with total fine of Rs.1,77,000/- and sentenced him in the

following manner:

Section 376 of the IPC – sentenced him to undergo ten

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years rigorous imprisonment with fine of Rs.50,000/-, in
default, to further undergo two years rigorous
imprisonment.

Section 506(2) of the IPC – sentenced him to undergo
three years rigorous imprisonment with fine of Rs.2,000/-,
in default, to further undergo six months rigorous
imprisonment.

• Section 4 of the POCSO Act, 2012 – sentenced him to
undergo ten years rigorous imprisonment with fine of
Rs.50,000/-, in default, to further undergo two years
rigorous imprisonment.

• Section 5(M)(N) of the POCSO Act, 2012 – sentenced him
to undergo ten years rigorous imprisonment with fine of
Rs.50,000/-, in default, to further undergo two years
rigorous imprisonment.

• Section 8 of the POCSO Act, 2012 – sentenced him to
undergo five years rigorous imprisonment with fine of
Rs.25,000/-, in default, to further undergo one year
rigorous imprisonment.

All the sentences shall run concurrently.

2. Heard learned advocate for the applicant as well as

learned Additional Public Prosecutor for the respondent-State.

3. Learned advocate for the applicant submits that the

learned Trial Court has not properly appreciated the evidence

on record, and thereby, convicted and sentenced the applicant

for the offences as stated above. It is submitted that the

appeal preferred by the applicant is admitted by this Court, but

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looking to the pendency of old criminal appeals before this

Court, chances of having early final hearing of the appeal, are

very less. It is further submitted that the applicant is convicted

and sentenced for the period of ten years, out of which by now,

the applicant has undergone three years one month and

twenty-seven days. The jail conduct of the applicant is also

good. The applicant was released on temporary bail, furlough

leave as well as on parole leave but, on each occasion, on

completion of leave period, he has reported in time and has

not misused the liberty during the leave period.

4. Learned advocate for the applicant upon instructions

states that the fine amount of Rs.1,77,000/- is deposited by the

applicant before the concerned trial Court. It is submitted that

the applicant has no objection if the said fine amount of

Rs.1,77,000/- is given to the victim girl. Learned advocate for

the applicant further states that the applicant will not claim

refund of the fine amount even if, he succeeds in appeal.

5. Learned advocate for the applicant further submits that

the grandfather of the victim girl is having total 20 bighas land

and family understanding/agreement arrived at to the effect

that three sons of grandfather namely-Patoliya Ravjibhai

Khodabhai would be allotted 5 bighas each and remaining 5

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bighas shall remain with grandfather. Out of share of 5 bighas

of agriculture land of the applicant namely-Kanubhai Ravjibhai

Patoliya, he has agreed to part with 3 bighas of land to the

victim girl and to this effect affidavit is filed by the father of the

applicant and grandfather of the victim namely Patoliya

Ravjibhai Khodabhai. Along with the affidavit xerox-copy of

Aadhar card is also produced. The abstract of village form

no.8(a) of Village – Kotha Pipariya bearing block/survey no.42

paiki 1 and the copy of 7/12 abstract with respect to land in

question is also produced. The affidavit of other brothers

namely Hasmukhbhai Ravjibhai Patoliya and Mathurbhai

Ravjibhai Patoliya is also filed in support of the affidavit for

family understanding and for distribution of agriculture land.

The father of the applicant and grandfather of the victim girl

namely Ravjibhai Khodabhai Patoliya has filed affidavit likewise

wife of the Ravjibhai Khodabhai Patoliya namely Smt. Sakarben

Ravjibhai Patoliya grandmother of the victim girl and mother of

the applicant in view of the understanding arrived at between

the family members. The father and mother of the applicant as

well as brother of the applicant and father of the victim girl are

present before this Court. The contents of the affidavit are

explained to them and the same are admitted by the persons

who are present before this Court. The said affidavit is taken

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on record. It is also stated in the affidavit that the complainant

side has no objection, if the applicant is released on bail.

6. Learned advocate for the applicant further submits that

in view of the understanding arrived at between the family

members with respect to immovable property i.e agriculture

land as stated in affidavit, the further documents with regard

to the partition amongst the family members will be executed

at the later stage and the persons who have filed affidavit

before this Court will extend their full co-operation in such

execution of documents. Further all of the family members

have undertaken before this Court that they will take care of

the future of the victim girl and her further education as well

as her welfare will be properly look after by them. Not only

that, but the applicant will also co-operate other family

members so as to avoid any future untowards incident and/or

harassment to the victim girl.

7. Learned Additional Public Prosecutor appearing for the

respondent-State while opposing the present application

submits that the learned Trial Court after careful consideration

of the evidence on record, convicted and sentenced the

present applicant for the offence punishable under Section 376

of the Indian Penal Code. It is further submitted that there is

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sufficient evidence on record to confirm the judgment and

order passed by the learned Court below. The oral evidence

given by the prosecution witnesses and more particularly

evidence given by prosecutrix, medical evidence and other

scientific evidence are more than sufficient to uphold the

conviction and therefore, looking to the gravity of the offence,

the applicant may not be enlarged on bail.

8. Regard being had to the above submissions and

considering the material placed on record, in the facts and

circumstances of the case as also considering the contents of

the affidavit filed before this Court by the father of the

applicant which is supported by other family members

including brothers of the applicant, as also consent given by

the applicant to disburse the fine amount in favour of the

victim girl at this stage, and also considering the fact that the

complainant side and more particularly victim girl has no

objection, if the applicant is released on bail, this Court is of

the view that discretions 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), Amreli, in Special (POCSO) Case No. 23 of 2014

dated 02.03.2016 shall remain under suspension till the final

hearing and disposal of the main appeal. The applicant is

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ordered to be released on bail on his executing a personal 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 without prior
permission of this Court;

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

(d) shall furnish latest and permanent address of
residence and contact number 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;

(e) shall not enter into Amreli District till final disposal
of the appeal without prior permission of this Court;

(f) out of the fine amount of Rs.1,77,000/-, an amount
of Rs.1,70,000/- shall be invested in Fixed Deposit
in the name of victim girl in Nationalized Bank
preferably Dena Bank at Dhari, Amreli initially for a
period of five years; thereafter, the same shall be
renewed for further period as per the desire of the
victim girl. The quarterly interest accrued on the
said Fixed Deposit be given to the victim girl;

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(g) So far as the remaining fine amount of Rs.7,000/-

is concerned, the Trial Court shall disburse the same
to the victim girl by an Account Payee cheque after
proper verification. The permission to withdrawal of
the amounts, shall not be construed as admission of
guilt on the part of the applicant as the amount is
being deposited without prejudice to the rights and
contentions of both the sides. However, it is clarified
that the applicant will not claim refund of the said
amount in the event of his acquittal in future. If the
above conditions as volunteered by the applicant
are not complied with or fulfilled, the bail granted in
favour of the applicant shall stand automatically
cancelled without any reference to the court.

(h) In the event of committing breach of the conditions
imposed by this Court and/or in the event of any of
the family members in respect of understanding
arrived at between the them which is presented
before this Court in the form of affidavit, the victim
girl is at liberty to approach this Court.

9. It appears that the victim girl has not received any

compensation from the State Government under the Victim

Compensation Scheme. In this situation, Chairman, District

Legal Services Authority, Amreli shall take necessary steps for

providing victim compensation to the victim girl at the earliest.

The victim girl as well as father, grandfather and grandmother

of the victim girl are present before this Court today and they

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are instructed to remain present before the Chairman and/or

Secretary, District Legal Services Authority, Amreli on

25.09.2017. The Chairman and/or Secretary, District Legal

Services Authority shall immediately process the application

for providing victim compensation to the victim girl under the

scheme notified by the State Government under its latest

notification dated 18.07.2017. The outcome of the process

undertaken by the Chairman and/or Secretary, District Legal

Services Authority, Amreli shall be intimated to this Court on or

before 12.10.2017.

10. The father of the applicant who has filed affidavit before

this Court shall take necessary further steps for compliance of

the averments made in the affidavit dated 15.09.2017. The

Revenue Authority shall co-operate to the father of the

applicant as and when he approach for the purpose of making

proper entries in the revenue records as per the understanding

arrived at between the family members. The Revenue

Authority shall transfer the land in favour of the victim girl on

the basis of understanding arrived at between the family

members in respect of immovable property i.e agriculture land

belonging to the father of the applicant and grandfather of the

victim girl namely – Ravjibhai Khodabhai Patoliya.

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11. Copy of this order be sent to the Chairman, District Legal

Services Authority, Amreli as well as Revenue Authority, the

District Collector, Amreli for information and necessary action.

The outcome of efforts made for providing victim

compensation as well as necessary entries in Revenue records

be intimated to this Court.

12. The present application is stand over to 12.10.2017 for

the purpose of examining the report from the Chairman,

District Legal Services Authority as well as Revenue Authority,

Amreli.

(P.P.BHATT, J.)

NEHA

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