Gujarat High Court
Gopiben Harikant Soni vs State Of Gujarat on 30 March, 2021
Bench: Bela M. Trivedi
R/CR.A/332/2020 IA ORDER
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
CRIMINALMISC.APPLICATION(FORSUSPENSIONOF SENTENCE) NO. 1 of 2020
In
R/CRIMINALAPPEALNO. 332 of 2020
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GOPIBENHARIKANTSONI
Versus
STATEOF GUJARAT
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Appearance:
HCLSCOMMITTEEfor the PETITIONER(s)No.
MRNEERAJSONIfor the PETITIONER(s)No.
MS MOXATHAKKAR,ADDITIONALPUBLICPROSECUTORfor the RESPONDENT(s)No.
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date: 30/03/2021
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 Additional Sessions Judge,
Anand (hereinafter referred to as the trial
Court) in Special POCSO Case No.25/2017 vide
the judgment and order dated 17.07.2018,
whereby the applicant has been convicted for
the offence under Section 376(2) read with
Section 114 and under Section 506(2) read
with Section 114 of the Indian Penal Code,
and sentenced to undergo rigorous
imprisonment for a period of 10 years and 2
years respectively for the said offences.
R/CR.A/332/2020 IA ORDER
2.The learned Advocate Mr. Neeraj Soni for the
applicant submitted that the present
applicant was falsely implicated by the
complainant. He also took the Court to the
depositions of the victim and her mother,
i.e. the complainant to submit that the
applicant was innocent and the complainant
did not even know the applicant and that the
applicant did not have a personal knowledge
about the alleged incident in question.
3.The learned Additional Public Prosecutor Ms.
Moxa Thakkar however submitted that having
regard to the age of the victim, and
seriousness and gravity of the offence as
also the proved involvement of the present
applicant, no lenient view be taken.
4.The Court has gone through the evidence as
also the record and proceedings produced on
record, from which the involvement of the
present applicant in the commission of the
offences under Sections 376 and 506 of the
Indian Penal Code is clearly made out by the
prosecution. From the allegations made in
the complaint and the history recorded by the
PW4 - Dr. Shilpa Sapre also the involvement
of the applicant is also held proved by the
R/CR.A/332/2020 IA ORDER
trial Court. It is needless to stay that the
Court is not required to elaborately deal
with the evidence already appreciated by the
competent Criminal Court, which has convicted
the present applicant alongwith the co
accused - Pareshbhai alias Bhalabhai
Chhotabhai alias Chandubhai Parekh.
5.It may be noted that as per the settled legal
position, once the accused is convicted by
the competent Criminal Court, the initial
presumption of innocence is not available to
him. Beneficial reference of the decision of
Supreme Court in the case of Sidhartha
Vashisht alias Manu Sharma Vs. State (NCT of
Delhi), reported in 2008 Cri. L. J. 3524
(SC), be made in this regard. The relevant
observations made by the Supreme Court in
paragraphs No. 16, 30 to 32 are 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
R/CR.A/332/2020 IA ORDER
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.
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
R/CR.A/332/2020 IA ORDER
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.Having regard to the facts and circumstances
of the case, the present application seeking
suspension of sentence cannot be entertained
considering the seriousness and gravity of
offence for which the applicant - accused has
been convicted and therefore, the application
is rejected.
Sd/-
(BELA M. TRIVEDI,J)
CAROLINE
