Kantibhai Arjanbhai Bharvad vs State Of Gujarat
2021 Latest Caselaw 292 Guj

        R/CR.A/438/2020                                        IA JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           1 of 2020
             In R/CRIMINAL APPEAL NO. 438 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE BELA M. TRIVEDI                          Sd/-

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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO

2 To be referred to the Reporter or not ?

YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any NO order made thereunder ?

========================================================== KANTIBHAI ARJANBHAI BHARVAD Versus STATE OF GUJARAT ========================================================== Appearance:

MR SYED, SR. ADVOCATE with MR.CHIRAG B UPADHYAY for the PETITIONER(s) No. MS CM SHAH, APP for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

Date : 11/01/2021

IA JUDGMENT

1. The application has been filed by the applicant

- appellant (original accused) under Section 389

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of Cr. P.C., seeking suspension of his sentence pending the appeal arising out of the judgement and order of conviction dated 1.2.2020 passed by the Special (POCSO) Court, Arvalli at Modasa (hereinafter referred to as "the trial Court") in Special POCSCO Case No.28/2018.

2. The applicant - accused was tried for the offence under Section 376 of IPC and Sections 4, 8, and 12 of the Prevention of Child from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act") by the trial Court in respect of the complaint filed by the complainant - prosecutrix on 21.3.2018 before the Malpur Police Station, Arvalli registered as FIR No.I- 0017/18. The trial Court after appreciating the evidence on record has convicted the applicant - accused and has sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.10,000/-, and in default thereof, to undergo simple imprisonment for six months for the offence under Section 376 of IPC. Being aggrieved by the said judgement and order, the applicant - appellant has preferred the Criminal Appeal being No.438 of 2020, which has been admitted by this Court and is pending for the final hearing. Pending the said appeal, the present application has been filed by the applicant - accused under Section 389 of Cr. P.C., seeking suspension of his sentence.

3. The     learned          Sr.        Advocate           Mr.Syed           for       the





 R/CR.A/438/2020                                             IA JUDGMENT

applicant has vehemently submitted that the age of the prosecutrix having not been duly proved, the applicant has been acquitted for the offence under the POCSO Act and that there was no cogent evidence for convicting the applicant for the offence under Section 376 of the IPC. According to him, there were number of contradictions in the evidence of the prosecutrix and the medical evidence. The blood/semen samples of the husband were not taken by the Investigating Officer. The scientific evidence, more particularly the serological report did not give any headway to the case of prosecution. The case of the prosecution rested solely on the evidence of the prosecutrix, which could not be said to be of a very sterling quality. Placing reliance on the unreported decision of the Supreme Court in case of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, in Criminal Appeal No.264 of 2020 decided on 14.2.2020, Mr.Syed submitted that the sterling witness should be a very high quality and calibre, whose version should be unassailable and that the evidence of such witness should be of such a nature that on its face value, the Court, without any hesitation should be able to accept it. Mr.Syed has also placed reliance on the decision of the Supreme Court in case of Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat, reported in (1999) 4 SCC 421 to buttress his submission that the High Court should take a lenient view in the

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matter of suspension of sentence, where the appeal is not likely to be heard in near future and the sentence is of a fixed period imposed on the appellant - accused. Reliance was also placed on the decision of the Delhi High Court in case of Ranjit Kumar Vs. State, reported in 2012 SCC OnLine Del 100 to submit that the appellant has prima facie an arguable case going to the root of the matter, and hence, the discretion should be exercised in favour of the appellant for suspending the sentence. Mr.Syed further submitted that the accused was falsely implicated as the husband of the prosecutrix had borrowed money from the accused and the accused was demanding the same from her husband, which resulted into an enmity between the accused and the husband of the prosecutrix. Mr.Syed lastly submitted that the version of the prosecutrix was not believable inasmuch as the alleged place of offence was a public place and if the appellant had forcefully taken her to the bushes or the ravine and committed the wrongful act as alleged, there would be scratches on her body, however, no such injury or scratches were found on the body of the prosecutrix.

4. However, the learned APP Ms.Shah for the State emphatically submitted that considering the nature and gravity of offence, as also the age of the prosecutrix, no lenient view should be taken by the Court.

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5. Before adverting to the rival contentions raised by the learned Advocates for the parties, it would be beneficial to refer to the settled legal position, to the effect that when the appellant - accused is convicted by the competent Criminal Court, the initial presumption of innocence is no more available to him. In case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi), reported in Cri. L. J. 3524 it has been observed in paragraphs 16, 30 to 32 as under:-

"16.We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

17 to 29 xxx

30. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to be an `innocent person' until the final decision is recorded by the superior Court in his favour.

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31. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461, Vijay Kumar v. Narendra & Ors., (2002) 9 SCC 364 : JT 2004 Supp (1) SC 60, Ramji Prasad v. Rattan Kumar Jaiswal & Anr., (2002) 9 SCC 366 : JT 2002 (7) SC 477, State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC 461.

32. In the above cases, it has been observed that once a person has been convicted, normally, an appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302, IPC, the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.".

6. So far as the facts of the present case are concerned, it appears that the complaint was immediately lodged by the complainant -

 R/CR.A/438/2020                                                       IA JUDGMENT




prosecutrix             on     21.3.2018,           with       regard            to     the

incident in question. She had also narrated the history before the doctor with regard to the alleged incident involving the present applicant. Her statement before the Magistrate, Malpur under Section 164 was also recorded on 23.3.2018. The prosecutrix in her substantive evidence before the trial Court had adhered to her version stated in the complaint as well as in her statement under Section 164 of the Cr.P.C.. It is also required to be noted that there was no substantial defence raised in her cross-examination for impeaching the credibility of her evidence. Not a single question was asked in her cross-examination as regards the false implication of the accused due to enmity or for any other reason. It may further be noted that the PW-4 Dr. Pradiksha K. Damor had also stated in her evidence that she had examined the prosecutrix on 22.3.2018 and the accused on 2.4.2018 when she was on duty as Medical Officer, C.H.C, Malpur and both the prosecutrix as well as the accused had stated about the incident in question in their respective history. The said evidence had also remained unchallenged in the cross-examination at the instance of the defence. Thus, considering the overall evidence led by the prosecution, the trial Court has convicted the applicant - accused for the alleged offence under Section 376 of IPC, which is of a very serious in

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nature. Hence, considering the seriousness and the gravity of offence the Court is not inclined to suspend the sentenced imposed by the trial Court pending the present appeal filed by the applicant - appellant.

7. In that view of the matter, the application deserves to be dismissed and is accordingly dismissed. However, considering the submission of Mr.Syed to fix the date for the final hearing of the appeal, it is directed that the appeal shall be expeditiously heard.

Sd/-

(BELA M. TRIVEDI, J) V.V.P. PODUVAL