Vikramji Nagarji Thakor vs State Of Gujarat
2021 Latest Caselaw 14964 Guj

     R/CR.A/270/2021                            IA ORDER DATED: 23/09/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

   CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF
               SENTENCE) NO.1 of 2020
         In R/CRIMINAL APPEAL NO.270 of 2021
=========================================

VIKRAMJI NAGARJI THAKOR Versus STATE OF GUJARAT ========================================= Appearance :

HCLS COMMITTEE for the PETITIONER.

MR NILESH I JANI for the PETITIONER.

MR J.K. SHAH, APP for the RESPONDENT.

========================================= CORAM:HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 23/09/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. By way of the present application preferred under Section 389 of the Code of Criminal Procedure, 1973, the applicant

- convict has prayed to suspend the sentence imposed by learned Additional Sessions Judge and Special Judge (POCSO) at Mehsana, vide judgment and order dated 30.8.2017 passed in Special (POCSO) Case No.16 of 2014 by which the applicant has been convicted under Sections 363, 366 and 376 of the Indian Penal Code and Sections 4 and 8 of the Protection of Children From Sexual Offences Act, 2012 and ordered to undergo rigorous imprisonment of 7 years and 10 years respectively.

2. By order dated 4.3.2021, while admitting the appeal, Records and Proceedings of the aforesaid Special (POCS0) Case was called for and accordingly, the same has reached to this Court.

3. Mr. Nilesh I. Jani, learned advocate appearing for the applicant would submit that it is an admitted position that at the

R/CR.A/270/2021 IA ORDER DATED: 23/09/2021

time of commission of offence, the prosecutrix was aged about 17 years and 11 months. He would further submit that the prosecutrix had affair with other persons. However, she has eloped with the present applicant. Further, the prosecutrix has also disclosed before the Medical Officer that she had physical relation with the applicant at her home on number of occasions and has also further disclosed in her deposition that she had engaged with the boy who was never liked by her and, therefore, she had relationship with the other persons. He would further submit that the applicant was on bail during the pendency of the trial and has not breached any of the conditions imposed while the applicant was released on bail. He, therefore, would submit that the present application may be allowed.

4. On the other hand, Mr. J.K. Shah, learned Additional Public Prosecutor appearing for the respondent - State would submit that the date of birth of the prosecutrix is 11.7.1995, whereas the alleged incident has taken place on 19.6.2013 and, therefore, at the time of commission of offence, the prosecutrix had not completed 18 years of age. He would further submit that when the applicant is convicted after completion of trial, the applicant having remained on bail during the pendency of trial has no consequence and, therefore, the present application may be rejected.

5. We have heard learned advocates appearing for the respective parties and perused the Records and Proceedings received from the Trial Court, depositions of the prosecutrix as well as other witnesses, history given by the prosecutrix before the Medical Officer as well as also gone through the reasoning part recorded in the impugned judgment of the Trial Court.

R/CR.A/270/2021 IA ORDER DATED: 23/09/2021

Considering the overall facts and circumstances of the case, without discussing the evidence in detail at this stage, we are of the opinion that the present application requires consideration and hence the same is allowed.

6. In view of the above, it is directed that the execution of the sentence imposed by learned Additional Sessions Judge and Special Judge (POCSO) at Mehsana, vide judgment and order dated 30.8.2017 passed in Special (POCSO) Case No.16 of 2014 shall remain suspended pending the appeal qua the present applicant - appellant - Vikramji Nagarji Thakor 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.

5. 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)

(NIRZAR S. DESAI,J) SAVARIYA