Rajubhai @ Tino @ Rajendrabhai ... vs State Of Gujarat
2021 Latest Caselaw 1658 Guj

              R/CR.A/1311/2020                           IA ORDER



                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

     CRIMINALMISC.APPLICATION(FORSUSPENSIONOF SENTENCE) NO. 1 of 2020
                    In R/CRIMINALAPPEALNO. 1311of 2020
                                  With
     CRIMINALMISC.APPLICATION(FORSUSPENSIONOF SENTENCE) NO. 1 of 2020
                    In R/CRIMINALAPPEALNO. 1313of 2020
==========================================================

[email protected] [email protected] RAJENDRABHAIPRATAPSINHPARMAR Versus STATEOF GUJARAT ========================================================== Appearance:

(CR.M.A.1/2020in CR.A.1311/2020) MRTEJASM BAROTfor the PETITIONER(s)No.

MS KRINACALLAAPPfor the RESPONDENT(s)No. (CR.M.A.1/2020in CR.A.1313/2020) MRTEJASM BAROTfor the PETITIONER(s)No.

MRRCKODEKARAPPfor the RESPONDENT(s)No. ========================================================== CORAM: HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE A.C. RAO Date: 04/02/2021 COMMON IA ORDER (PER: HONOURABLEMR. JUSTICEA.J.DESAI)

1. Present applications have been filed under Section 389 of Cr. P.C., by the applicants - appellants, seeking suspension of their sentence pending Criminal Appeal Nos. 1311 of 2020 and 1313 of 2020 arising out of the judgment and order dated 8.12.2020 passed by the 2nd Additional Sessions Judge, Kheda at Nadiad in Sessions Case No.2 of 2017 by which the applicant - Rajubhai @ Tino @ Rajendrabhai Pratapsinh Parmar and applicant - Vipulbhai Bhupatsinh Sokanki have been convicted for the offfence punishable under Section 342 of IPC r.w. Section 114 of IPC and have been sentenced to undergo 1 year rigorous imprisonment with fine of Rs.100 in default 2 days imprisonment; convicted under Section 366 of IPC r.w. Section 114 of IPC and have been sentenced to undergo 5 years rigorous

R/CR.A/1311/2020 IA ORDER

imprisonment with fine of Rs.5,000 in default 6 months imprisonment; convicted under Section 452 of IPC r.w. Section 114 of IPC and have been sentenced to undergo 2 years rigorous imprisonment with fine of Rs.5,000 in default 6 months imprisonment and the applicant - Vipulbhai Bhupatsinh Sokanki under Section 376 of IPC has been sentenced to undergo life imprisonment with fine of Rs.10,000 in default 6 months imprisonment and each of the applicants are also directed to pay compensation of Rs.50,000/- to the victim.

2. Learned advocate Mr. Barot for the applicants has supplied necessary documents for perusal of the Court and copy of the same has also been supplied to the learned APP.

2.1 Learned advocate Mr. Barot would submit that the learned Sessions Court has committed error in convicting each of the applicants for the said offence only on believing the deposition of the prosecutrix and has ignored other relevant evidence, which he has produced before us. He would submit that the alleged incident has taken place on 5.9.2016 for which the mother of the prosecutrix informed the concerned police station on the same day alleging that her daughter has eloped with the applicant - Vipul Bhupatsinh Solanki and has taken some ornaments with her. After 3 days i.e. on 8.9.2016, when her daughter was found, she informed the concerned police station that Janvajog entry was made and as her daughter was found, she did not want to lodge any FIR and did not want to take action against any person. Similar was the statement of the prosecutrix on the same day in which she has stated that

R/CR.A/1311/2020 IA ORDER

nobody had harassed her or ill-treated her during these 3 days. He would submit that the prosecutrix, who is a married lady, had subsequently lodged an FIR on 16.10.2016 i.e. after 38 days from her return and 41 days from the date of incident. He would therefore submit that for the reasons best known to the prosecutrix, while lodging the complaint, reasons are not properly explained by her. The explanation are not satisfactorily made, which is required to be discarded by the learned sessions Court.

2.2 He would further submit that as far as applicant - Rajendrabhai Pratapsinh Parmar is concerned, he has been charged that he had abetted the offence. There are all chances for the applicants to succeed in the appeals. He would further submit that both the applicants were released on bail during pendency of the trial. He would therefore submit that present applications may be allowed.

3. On the other hand, learned APP Mr. R.C.Kodekar has opposed the applications and would submit that the prosecutrix, who has been examined as PW-3 at Exh.27 has categorically stated that she was threatened by the applicants and was compelled to run away with them on motorcycle and as she was threatened, she did not call for any help. He would submit that even during those 3 days, she was kept in a room which was locked from outside and as she was under threat, she had not raise any voice. He would further submit that as far as lodgment of the FIR at belated stage is concerned, she has properly explained the delay by saying that she was residing with her maternal uncle and due to religious reasons, she did not leave

R/CR.A/1311/2020 IA ORDER

the village and therefore, filed the complaint at belated stage. He would therefore submit that when the version / deposition of the prosecutrix is rightly accepted by the learned Sessions Court and convicted the applicants, present applications may be rejected.

4. We have heard learned advocate Mr. Barot for the applicants - appellants and learned Additional Public Prosecutors for the respondent State and perused the deposition of the witness, more particularly deposition of the prosecutrix. It is an undisputed fact that Janvajog entry Exh.48 was lodged at Dakor police station by the mother of the prosecutrix wherein she has declared that her daughter had eloped with Vipulbhai Bhupatsinh Solanki. Similarly, when the prosecutrix had returned to her home, her mothern made a statement before the Dakor police station on 8.9.2016 (Exh.55) wherein she has declared that her daughter had eloped with Vipulbhai Bhupatsinh Solanki. Similar is the statement of the prosecutrix on 8.9.2016 (Exh.29).

4.1 Apart from this aspect, after the statement recorded before the Dakor police station on 8.9.2016, the prosecutrix has lodged the FIR after period of 38 days i.e on 16.10.2016. The delay in lodging the FIR is not discussed at this stage since we are dealing with the applications for suspension of sentence.

4.2 Having regard to the facts and circumstances of the case and considering the submissions made by the learned advocates for the parties and also considering the fact that both

R/CR.A/1311/2020 IA ORDER

the applicants were on bail during the trial, we are of the opinion that the present applications deserve to be granted. Accordingly, the present applications are allowed.

5. In view of the above, it is directed that the execution of the sentence imposed by the learned Sessions Court in Sessions Case No.2 of 2017 shall remain suspended pending the appeals qua the present applicants - appellants Rajubhai @ Tino @ Rajendrabhai Pratapsinh Parmar and Vipulbhai Bhupatsinh Sokanki and that they shall be released on bail pending the appeals subject to the following conditions :-

(i) The applicants shall furnish the bond of Rs.10,000/- (Rupees Ten Thousand only) EACH and surety of the like amount and also furnish their full and correct present and permanent address, if any, along with the contact numbers.

(ii) The applicants shall deposit their passports, if any, before the concerned Sessions Court.

(iii) The applicants shall report to the concerned Police Station on any day of the first week once in a month.

6. Rule is made absolute in both the applications. A copy of the order be sent to the concerned Sessions Court as well as to the concerned Police Station forthwith.

(A.J.DESAI,J)

(A. C. RAO,J) KAUSHIKD. CHAUHAN