Rahul Gelabhai Parmar vs State Of Gujarat
2021 Latest Caselaw 5187 Guj

               R/CR.A/524/2021                                ORDER




                 IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                      R/CRIMINALAPPEALNO. 524 of 2021
                                   With
     CRIMINALMISC.APPLICATION(FORSUSPENSIONOF SENTENCE) NO. 1 of 2021
                     In R/CRIMINALAPPEALNO. 524 of 2021
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                                 RAHULGELABHAIPARMAR
                                        Versus
                                   STATEOF GUJARAT
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Appearance:
MRPREMALS RACHH(3297)for the Appellant(s)No. 1
MS JIRGAJHAVERIAPP for the Opponent(s)/Respondent(s)No. 1
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 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                                    Date: 20/04/2021

                                     ORALORDER

ORDER under CRIMINAL APPEAL NO. 524 of 2021

ADMIT.

ORDER under CRIMINAL MISC.APPLICATION NO. 1 of 2021

1. Rule. Learned APP Ms. Jirga Jhaveri waives service of notice of rule on behalf of the respondent­State.

2. This application is filed under section 389 of the Criminal Procedure Code, 1973 for suspension of conviction and sentence and for bail pending criminal appeal, which is preferred against the judgment and order dated 25.03.2021 passed by the Ld. Special Judge and Addl. District and Sessions Judge, Jamnagar, whereby the applicant is convicted under section 363, 366 of

R/CR.A/524/2021 ORDER

Indian Penal Code and section 4 and 6 of POCSO Act.

3. Mr. Premal S Rachh, learned advocate for the applicant, submitted that the appellant­applicant came to be acquitted for the offence punishable under section 376(2)(j)(n), 504 and 507 of IPC. He further submitted that as per the deposition on record of the victim, the conviction would not sustain. Mr. Rachh submitted that the victim had left her parental home on 24.03.2017 on her own volition. Therefore, there would not be any case of kidnaping, hence punishment under section 363 of IPC would not be maintainable. Mr. Rachh has stated that the victim was in love with the applicant and when she left her house, she was aged about 17 years and 10 months. The FIR came to be lodged on 24.05.2017 and thereafter on the next day 25.05.2014, the victim­witness has married the present applicant which was a registered marriage. The applicant came to be arrested on 15.06.2017, thereafter the victim was medically examined and on the basis that the victim had attained the majority, the applicant was released on bail on 21.07.2017. The charge­sheet came to be filed and the trial was conducted against the applicant. He further submitted that section 366 of IPC would not be attracted since the marriage was registered only after the victim attained the majority. There was no intention of the applicant to compel the victim to marry against her will and it is further submitted that no case of committing the offence of aggravated penetrative sexual assault be made out against applicant. Learned advocate Mr. Rachh has referred to the evidence of the victim at Exh.44, to show that she was never kidnapped by the applicant­accused and on the contrary the victim herself admits that that there was no any physical

R/CR.A/524/2021 ORDER

relation between them before their marriage. The victim has given statement before the Magistrate and nothing adverse against the applicant­accused was found in the cross­ examination. Thus, advocate, Mr.Rachh submitted that the impugned judgment and order of conviction is unjust and bad in law, in as much as, none of the ingredients of provisions of section 363,366 of IPC and section 4 and 6 of POCSO Act are satisfied against the present appellant­accused.

4. Per Contra, Ms. Jirga Jhaveri, learned Additional Public Prosecutor, has submitted that the girl had left her parental home when she was minor and had stayed with the accused for approximately two months at Chotila, and on that basis conviction has followed. She further urged that there is no ground as such to interfere with the observations and reasonings given by the trial Judge. Therefore, she prayed that this court may not exercise discretion in favour of the applicant for suspension of sentence.

5. Heard learned advocates on both the sides and perused the material on record.

6. The law on the subject is well­settled. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously, depending on the facts and circumstances of each case. While considering the issue of suspension of sentence, each case has to be considered on the basis of the nature of offence, the manner in which the occurrence has taken place and whether in any manner bail

R/CR.A/524/2021 ORDER

granted earlier had been misused.

7. While considering an application under section 389 CrPC, the issue to be considered by the appellate Court is whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which, ultimately, the accused has fair chances of acquittal. This has to be done in the backdrop that the appellate Court cannot appreciate the evidence while considering an application under section 389 CrPC but, can look into the reasoning assigned by the trial Court while recording the conviction.

8. In the present case, advocate, Mr.Patel submited when the relationship with a minor culminates into marriage then no presumption of culpable mental state on the part of the accused with respect to the act charged as an offence can be drawn, since the very relation with the victim was on the basis of love affair which has resulted into marriage having family with a child.

9. As per to the facts the victim had married the applicant after attaining majority and the applicant was on bail during the trial. Looking to the present case, both mother and her minor child are residing at matrimonial house with the applicant. The applicant has good case for defending himself on merits.

10. Thus prima facie looking to the facts and circumstances of the case and having considered the evidence of the victim and the foregoing reasons, the application is allowed. The execution of sentence imposed upon the applicant vide judgment and dated 25.03.2021 passed by the Ld. Special Judge and Addl.

R/CR.A/524/2021 ORDER

District and Sessions Judge, Jamnagar, in Special(POCSO)Case No.27/2017, shall stand suspended, pending hearing and final disposal of the captioned appeal and the applicant is ordered to be released on bail on furnishing personal bond of Rs.15000/­ (Rupees fifteen thousand only) with solvent surety of the like amount to the satisfaction of the trial Court and on the following conditions;

(a)       shall maintain law and order.
(b)       shall not indulge in any activity leading to breach of public
peace and tranquility.
(c)       shall not leave the district without prior permission of
D.S.P of Jamnagar.

11. Rule is made absolute. Registry to send a writ of this order to the jail authority and the trial Court forthwith by E­mail / Fax. Direct service is permitted.

(GITAGOPI,J) Radhika