Deepak Tukaram Fulmali vs State Of Gujarat
2021 Latest Caselaw 4736 Guj

              R/CR.A/1009/2020                                  IA ORDER




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD


   CRIMINALMISC.APPLICATION(FORSUSPENSIONOF SENTENCE) NO. 2 of 2020
                                 In
                   R/CRIMINALAPPEALNO. 1009of 2020

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DEEPAKTUKARAMFULMALI Versus STATEOF GUJARAT ============================================================================== Appearance:

for the PETITIONER(s)No.

MR. SURAJA SHUKLAfor the PETITIONER(s)No. JEETY RAJYAGURUfor the RESPONDENT(s)No. MS CMSHAH,ADDITIONALPUBLICPROSECUTORfor the RESPONDENT(s)No. =============================================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

Date: 25/03/2021

IA ORDER

1.The present application has been filed by the applicant­accused under Section 389 of the the Criminal Procedure Code, 1973 seeking suspension of the execution of the sentence imposed by the learned Special Judge (POCSO) and Additional Sessions Judge, Surat in POCSO Case No.56/2017 vide order dated 12.02.2020, whereby the applicant was convicted under Sections 363, 366 and 376 of the Indian Penal Code and under Sections 4 and 6 of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for a period of 7 years, 7 years and 10 years

R/CR.A/1009/2020 IA ORDER

respectively for the alleged offences Sections 363, 366 and 376 of the Indian Penal Code. However, the Court did not impose separate punishment for the offence under the POCSO Act.

2.Learned Advocate Mr. Suraj A. Shukla for the applicant relying upon the statement of the victim recorded by the Magistrate under Section 164 of the Cr.PC immediately after the incident, on her deposition recorded before the Court and on the Affidavit filed by the complainant (father of the victim) before this Court submitted that there was a love affair between the victim and the accused and that she had voluntarily left her parental house. He also submitted that there was no cogent evidence adduced by the prosecution to show that the age of the victim was below 18 years.

3.Learned Advocate Mr. Jeet Y. Rajyaguru for the respondent No.2 - complainant has also not resisted the present application and submitted that the Court may pass appropriate orders considering the facts and circumstances of the case.

R/CR.A/1009/2020 IA ORDER

4.Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that from the School Leaving Certificate, it transpires that the age of the victim was below 18 years and therefore, the offence has been committed by the applicant as alleged by the prosecution.

5.Having regard to the facts and circumstances of the case, the submissions made by learned Advocates and on going through the records of the case as also the statement of the victim under Section 164 of the Criminal Procedure Code, 1973 and her deposition before the Court, it clearly transpires that there was a love affair between the victim and the accused and that the victim had left her parental home voluntarily.

6.In that view of the matter, the present application deserves to be allowed and is allowed accordingly. The execution of the order of sentence imposed vide the judgment and order dated 12.02.2020 passed by the learned Special Judge (POCSO) and Additional Sessions Judge, Surat in POCSO Case No.56/2017 qua the applicant is hereby suspended till the final disposal of the Appeal, subject to the condition that he shall furnish a personal bond of Rs.25,000/

R/CR.A/1009/2020 IA ORDER

(Rupees Twenty Five Thousand Only) and one solvent surety of the like amount to the satisfaction of the concerned Court and subject to the further 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 surrender his passport, if any, to the lower Court, within a week and if he does not possess any passport, then he shall make a declaration to that effect before the trial Court;

(d) 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 to the Amroli Police Station, Surat.

(e) he shall not leave the limits of Gujarat State without prior permission of this Court;

(f) he shall mark his presence in the first week of every month before the Amroli Police Station, Surat.

R/CR.A/1009/2020 IA ORDER

7.It is made clear that any observations made while deciding this application are merely prima facie observations made for the purpose of suspension of sentence, and shall have no bearing on the final outcome of the Appeal.

8.Rule is made absolute accordingly.

Direct Service as well as service through Electronic Mode, is permitted.

Sd/-

(BELA M. TRIVEDI,J) CAROLINE