Gujarat High Court
Anandbhai Mansukhbhai Hathila vs State Of Gujarat on 3 February, 2021
Bench: Bela M. Trivedi
R/CR.A/471/2020 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2020
In R/CRIMINAL APPEAL NO. 471 of 2020
==========================================================
ANANDBHAI MANSUKHBHAI HATHILA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR PRATIK B BAROT for the PETITIONER(s) No.
MS C. M. SHAH, APP for the RESPONDENT(s) No.
==========================================================
CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 03/02/2021
IA ORDER
1. Heard learned Advocates for the parties.
2. Rule. Learned APP Ms. C. M. Shah waives service of notice
of Rule on behalf of Respondent-State.
3. Present application has been filed by the applicant- convict
seeking suspension of his sentence under section 389 of the
Code of Criminal Procedure, 1973 in connection with the
judgment and order dated 19.02.2020 passed by the Special
Judge and 2nd Additional Sessions Judge, Dahod (hereinafter
referred to as 'the Special Court') in Special (POCSO) Case
No.55 of 2016, whereby the applicant-convict has been
convicted for the offences punishable under sections 376(N)
of the IPC and under sections 3 and 4 of the Protection of
Children from Sexual Offcenes Act, 2012 (hereinafter
referred to as 'the said Act') and has been sentenced to
undergo rigorous imprisonment for a period of 10 years for
the offence under section 376(N) of the IPC and to pay fine of
Rs.5,000/-, in default thereto to undergo further
R/CR.A/471/2020 IA ORDER
imprisonment for a period of one year and undergo rigorous
imprisonment for a period of 7 years for the offences under
sections 3 and 4 of the said Act and to pay fine of Rs.2,000/-,
in default thereto to undergo further imprisonment for a
period of six months.
4. That the complainant- Samsubhai Lalabhai Meda, father of
the victim had lodged a complaint on 06.05.2016 before the
Dahod Rural police station, Dahod, inter alia alleging that
his daughter aged about 17 years and 11 months was not
found on the cot during night and had not returned back till
morning as on 26.04.2016. Thereafter, he had come to know
that the accused - Anandbhai Manshukhbhai Hathila had
forcibly taken his daughter with him. The said complaint
was registered as C.R. No.I-72/2016 at Dahod Rural police
station, Dahod for the offences punishable under sections
363, 366, 376, 376(N) of the IPC and under sections 3, 4 and 5
(a)(j)(ii) of the said Act.
5. The chargesheet was filed before the Special Court where the
case was registered as Special (POCSO) Case No.55/2016.
The Special Court after appreciating the evidences on record
has convicted the applicant-convict as stated hereinabove.
Being aggrieved by the said judgment and order of
conviction, the applicant- convict had preferred an Criminal
Appeal being No.471/2020, which has been admitted by the
Coordinate Bench vide order dated 17.03.2020. Pending the
said appeal, the applicant-convict has preferred present
application seeking suspension of sentence.
6. Learned Advocate Mr. Pratik Barot for the applicant-convict
taking the court to the evidence adduced by the prosecution
R/CR.A/471/2020 IA ORDER
before the Special Court, more particularly, the deposition of
the victim herself, her statement before the Judicial
Magistrate under section 164 of the Code of Criminal
Procedure and the history recorded by the Medical Officer as
given by the victim herself, submitted that the victim had
voluntarily accompanied the accused with whom she had an
affair and she herself had left the house of the complainant.
He further submitted that the victim in her statement before
the police had also admitted that she had a love affair with
the applicant-convict and she had voluntarily accompanied
him and left the house of complainant. According to
Mr.Barot, there was no cogent evidence as regards the age of
the victim and even otherwise, she was aged about 18 years
at the time of occurrence of incident in question.
7. Learned APP Ms. C. M. Shah appearing on behalf of the
Respondent-State has opposed the present application by
submitting that as per the school leaving certificate, the age
of the victim was 17 years and 11 months and therefore,
technically she was below 18 years and therefore, he consent
was of no significance. She also submitted that considering
the medical evidence and seriousness of the offences for
which the applicant is convicted, the sentence of the
applicant may not be suspended.
8. Having regard to the submissions made by the learned
advocates for the parties and to the documents on record,
more particularly deposition of the victim, her statements
before the police, before the Judicial Magistrate and before
the doctor, it prima facie appears that she had an affair with
the applicant-convict and she herself had accompanied him,
leaving the house of her parents. The age of the victim is also
R/CR.A/471/2020 IA ORDER
proved to be 17 years and 11 months i.e. about 18 years.
Hence, considering the facts and circumstances of the
present case, the Court is inclined to grant the present
application.
9. In that view of the matter, the execution of the order of
sentence imposed vide the judgment and order dated
19.02.2020 passed by the Special Judge and 2nd Additional
Sessions Judge, Dahod in Special (POCSO) Case No.55/2016
is hereby suspended till the final disposal of the Criminal
Appeal No.471 of 2020, subject to the following conditions:
(a) he shall not take undue advantage of his liberty or
abuse his liberty;
(b) he shall maintain law and order;
(c) he shall execute personal bond of Rs. 25,000/- and also
furnish surety of the like amount to the satisfaction of
the concerned Special Court;
(d) he shall surrender his passport, if any, to the Sessions
Court, within a week and if he does not possess any
passport, then he shall make a declaration to that effect
before the concerned Special court;
(e) he shall furnish an affidavit furnishing his full, correct
and permanent address and the phone number. If
during the pendency of the criminal appeal any change
in his residential address, permanent or temporary,
takes place, then the applicant shall intimate the same
to the trial court as well as the concerned Police Station;
R/CR.A/471/2020 IA ORDER
(f) he shall not leave the limits of Gujarat State without
prior permission of this Court;
(g) he shall mark his presence in first week of every month
before the concerned police station i.e. Dahod Rural
Police Station, Dahod. In case of any two default
consecutively, the PI of the concerned police station
shall report to the concerned Special Court.
10. It is made clear that any observations made while deciding
this application are merely prima facie observations made
for the purpose of grant of bail and shall have no bearing on
the final outcome of the Appeal. The application is allowed
accordingly. Rule is made absolute accordingly.
(BELA M. TRIVEDI, J)
MEHUL B. TUVAR
