Gujarat High Court
Dasharathbhai Pratapbhai Parmar vs State Of Gujarat on 28 January, 2021
Bench: A.J.Desai, A.C. Rao
R/CR.A/37/2021 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. 37 of 2021
=============================================
DASHARATHBHAI PRATAPBHAI PARMAR
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR DUSHYANT M BHATT for the PETITIONER(s) No.
MS KRINA CALLA, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No.
=============================================
CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 28/01/2021
IA ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. The present application has been filed under Section 389 of
Criminal Procedure Code, 1973 by the applicant - appellant,
seeking suspension of his sentence pending Criminal Appeal No. 37
of 2021 arising out of the judgment and order dated 04.12.2020
passed by the learned 2nd Additional Sessions Judge, Kheda at
Nadiad in Sessions Case No.85 of 2017 for the offences punishable
under Sections 328, 344, 366, 376(2)(N), 506(2) etc. of the IPC.
2. Heard learned Advocate Mr. Dushyant Bhatt for the applicant
appellant and the learned Additional Public Prosecutor for the
State.
3. Learned advocate Mr. Dushyant Bhatt appearing on behalf of
the applicant would submit that though it is the case of mutual
R/CR.A/37/2021 IA ORDER
relationship between the prosecutrix, who was aged 21 years at the
time of occurrence of the offence and the applicant herein, the trial
Court committed an error in discarding the evidence which has
come on record that the proecutrix herself had eloped with the
applicant on motorcycle and stayed at various places continuously
for 20 days and has never complained to any police station
throughout the said period of 20 days. He would submit that as per
the prosecution case and as per the say of prosecutrix herself the
applicant on several occasions had talks with the prosecutrix,
however no material with regard to said conversations have been
collected or proved by the prosecution. He would submit that the
prosecutrix eloped with the applicant on 08.09.2016, however her
parents did not inform the police for a considerable long time and
for the first time a Janva Jog entry was recorded by the concerned
police on 16.09.2016 i.e. after a period of 8 days. Thereafter, when
certain relatives of the prosecutrix came to know about the fact that
the prosecutrix is residing with the applicant at Bhuj, some
witnesses went to Bhuj and asked the prosecutrix to return to her
parental home, which the prosecutrix refused, however after great
efforts she returned to her parental home on 28.09.2016 and
thereafter, on 01.10.2016, the FIR came to be registered wherein it
is alleged that the force was used by the applicant. He has also
taken us through the deposition of witnesses who have stated that
she was not ready and willing to return to her home and wanted to
marry the applicant herein. He has also taken us through the
deposition of Medical Officer and would submit that in the history
given to the said doctor by the prosecutrix, there were no
allegations made that she was tied with the rope and that the
R/CR.A/37/2021 IA ORDER
prosecutrix has improved her version in the FIR and her statement
recorded under Section 164 of the Code of Criminal Procedure,
1973 before the concerned Magistrate. He would submit that
though such allegations have been made, no injuries whatsoever
including the injuries of such nature have been found on the person
of the prosecutrix. He would further submit that during the
pendency of the trial, the applicant was on bail. He would further
submit that appeal is likely to take some time and applicant -
appellant has a good case of acquittal. He has also taken us through
various contradictions in the deposition and statements of
witnesses recorded by the police. Therefore, learned advocate
appearing for the applicant has requested to suspend the sentence
of the applicant and release the applicant on bail.
4. On the other hand, learned APP Ms. Calla has opposed this
application and would submit that detailed scrutiny at this stage is
not required when the trial Court has prima facie believed the
version of the prosecutrix who has categorically stated the manner
and method in which the offence has been committed as also the
force used by the applicant for committing rape on her on several
occasions. She would further submit that a detailed version has
been given by the prosecutrix before the concerned Magistrate
while her statement was recorded under Section 164 of the Code of
Criminal Procedure, 1973 and in such circumstances, the
application is requested to be rejected.
5. We have heard learned advocates appearing for respective
R/CR.A/37/2021 IA ORDER
parties at length and perused the reasoning part of the judgment of
the learned trial Court.
It is an undisputed fact that the prosecutrix at the time of
offence was aged about 21 years and a college going student. The
prosecutrix has categorically stated that she was in contact with the
applicant through phone calls and used to meet the applicant on
several occasions. Though she has stated that under some threats
she had gone with the applicant, she has not made any complain to
anyone upto 01.10.2016 (when the FIR came to be lodged) about
the force alleged to have been used by the applicant. One of the
witnesses has stated that when he along with other relatives went
to Bhuj, where the prosecutrix was residing with the applicant, the
said witness had asked the prosecutrix to return to her parental
home to which the prosecutrix had refused to return and had told
the said witness that she wanted to marry the applicant. However,
after returning to her parental home, the prosecutrix has stated
about the force used by the applicant, however there are no
external injuries about the allegations that the prosecutrix was tied
by the applicant with the rope and offence was committed. Apart
from this aspect, the applicant was on bail pending the trial and the
applicant has never misused the liberty granted to him. We are of
the opinion that a detailed scrutiny at this stage is not required and
hence, we would like to use our discretion while considering the
present application for suspension of sentence.
6. In view of the above, it is directed that the execution of the
sentence imposed by the learned Sessions Court in Sessions Case
No.85 of 2017 vide the judgment and order dated 04.12.2020
R/CR.A/37/2021 IA ORDER
passed by the learned 2nd Additional Sessions Judge, Kheda at
Nadiad shall remain suspended pending the appeal qua the present
applicant - appellant Dashrathbhai Pratapbhai Parma and that he
shall be released on bail pending the appeal subject to the
following conditions :
(i) The applicant shall furnish the bond of Rs.10,000/ (Rupees
Ten Thousand only) and surety of the like amount and also furnish
his full and correct present and permanent address, if any, along
with the contact number.
(ii) The applicant shall deposit his passport, if any, before the
concerned Sessions Court.
(iii) The applicant shall report to the concerned Police Station on
any day of the first week once in a month.
7. Rule is made absolute. A copy of the order be sent to the
concerned Sessions Court as well as to the concerned Police
Station.
(A.J.DESAI, J)
(A. C. RAO, J)
Ajay
