Bholabhai S/O. Khemubhai Nansing ... vs State Of Gujarat
2021 Latest Caselaw 3704 Guj

        R/CR.A/83/2021                                              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. 83 of 2021
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BHOLABHAI S/O. KHEMUBHAI NANSING BANDVADIYA Versus STATE OF GUJARAT ================================================================ Appearance:

HCLS COMMITTEE for the PETITIONER(s) No. MR NIKHILESH J SHAH for the PETITIONER(s) No. MS KRINA CALLA, APP for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 03/03/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. RULE. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent

- State.

2. By way of the present application preferred under Section 389 (1) of the Code of Criminal Procedure, 1973 ('the Code' for short), the applicants have prayed to suspend execution and operation of the sentence imposed upon them by the learned Special (POCSO) Judge, Jamnagar vide judgment and order dated 27.11.2020 in Special (POCSO) Case No.24 of 2014 and further prayed to release the applicants on bail pending the accompanying criminal appeal.

3. Learned advocate Mr.Nikhilesh J. Shah, who has been appointed by the Gujarat High Court Legal Services Committee on behalf of the applicants, has

R/CR.A/83/2021 IA ORDER

produced xerox copies of the record and proceedings, including statements of witnesses and relevant documents etc. He has vehemently submitted that the learned Trial Court has wrongly convicted all the accused for the afore stated offences. He would submit that there is no clear evidence about the correct date of birth of the prosecutrix since there is discrepancy in the birth certificate with regard to the name of the prosecutrix which is produced on record. The name referred in the birth certificate is different than the name of the prosecutrix. He would further submit that even the Medical Officer has categorically stated that radiological examination suggests that the prosecutrix is above 19 years of age. He would further submit that initially when she was taken to the hospital, in her history, she has not named any of the applicants. He would further submit that apart from the applicant Nos.1 and 2, whose names have been referred in the F.I.R., names of applicant Nos.3 and 4 have never been named by any of the witnesses. He would submit that the method and manner of the Test Identification (TI) Parade raises several questions. He has also taken deposition of the prosecutrix, which suggests that before the TI Parade, applicant Nos.3 and 4 were shown to her in the hospital. He, therefore, would submit that the applicants may be released on bail pending appeal.

4. Ms.Krina Calla, learned Additional Public Prosecutor for the respondent­State would submit

R/CR.A/83/2021 IA ORDER

that it is a case of gang rape wherein a girl aged about 11 years has been subjected to the physical assault. She would submit that the prosecutrix was seriously injured in the crime and had sustained fracture on her leg and she was hospitalized. However, initially, she might not have given names of any of the accused, however, she had immediately disclosed the names of the applicant Nos.1 and 2, who have allegedly committed the rape. However, she has also stated to her brother about three unknown persons who have been identified by her in the TI Parade. She would submit that as per the say of the prosecutrix herself, she is the youngest daughter of Vestabhai and birth certificate as well as birth register suggest that name of the prosecutrix is mentioned as Kavita instead of Savita. However, names of her parents are correctly mentioned in the Birth Register as well as Birth Certificate, wherein the date of birth of the prosecutrix is mentioned as 10.08.2001 and instance had taken place in the year 2014. Therefore, she was admittedly a minor girl at the time when the rape was committed. She would submit that applicant No.3 was arrested on 17.03.2014 and applicant No.4 was arrested on 25.03.2014. However, the TI Parade was arranged only after she was discharged from the hospital on 26.03.2014 and the TI Parade was held on 30.03.2014, wherein the applicants No.3 and 4 have been identified by the prosecutrix. She, therefore, would submit that detailed scrutiny of the

R/CR.A/83/2021 IA ORDER

evidence of the prosecutrix is not required at this stage and hence, the present application be rejected.

5. We have heard the learned advocates appearing on behalf of the respective parties, perused the statement of the prosecutrix, deposition of the prosecutrix, depositions of the brother of the prosecutrix and Medical Officer, etc.

6. It is an undisputed fact that the F.I.R. was lodged immediately at the instance of the brother of the prosecutrix, wherein he has declared the names of the applicant Nos.1 and 2 whose names have been disclosed by the prosecutrix when she was in the hospital. As far as applicant Nos.3 and 4 are concerned, the TI Parade can be arranged only after she was discharged from the hospital i.e. after a period of 12 days from the date of incident. As far as birth certificate of the prosecutrix is concerned, we have not gone into detail at this stage.

7. Considering the overall facts and circumstances of the case, the present application fails and is accordingly rejected. Rule stands discharged.

Sd/­ (A.J.DESAI, J)

Sd/­ (A.S.SUPEHIA, J) NVMEWADA