Gujarat High Court
State Of Gujarat vs Dineshbhai Julabhai Tarar on 3 January, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.MA/20961/2023 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
20961 of 2023
In F/CRIMINAL APPEAL NO. 42395 of 2023
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STATE OF GUJARAT
Versus
DINESHBHAI JULABHAI TARAR
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Appearance:
MS KRINA P. CALLA, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 03/01/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Rule. Learned APP waives service of notice of rule for the
respondent State.
2. On 14.12.2023, this Court had passed the following
order : -
"Though served, no one has chosen to appear on
behalf of the respondent.
The matter is kept on 03.01.2024.
3. Today also, when the matter is called out, no one has
chosen to appear on behalf of the respondent. Hence, the
averments made in the memo of the application remain
uncontroverted.
NEUTRAL CITATION
R/CR.MA/20961/2023 ORDER DATED: 03/01/2024
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4. The present application has been filed seeking leave to
prefer an appeal against the judgment and order dated
25.08.2023 passed by the Court of Special Judge (POCSO) and
Additional Sessions Judge, Sabarkantha at Himmatnagar in
Special (POCSO) Case No.26 of 2022, wherein at the end of the
trial, the Trial Court passed following sentence:-
(a) The Trial Court has convicted accused for the
offence under Sections 9 & 10 of the POCSO Act and
ordered to suffer rigorous imprisonment for a period of
seven years and fine of Rs.10,000/- and in default, further
simple imprisonment for a period of six months;
(b) The Trial Court has further convicted the accused
for the offence under Section 377 of the IPC and ordered
to suffer rigorous imprisonment for a period of seven
years and fine of Rs.10,000/- and in default, further
simple imprisonment for a period of six months;
(c) The Trial Court has acquitted the opponent for the
offence under Section 6 of the POCSO Act.
5. Learned Additional Public Prosecutor for the applicant has
submitted that the Trial Court has not properly appreciated the
oral as well as documentary evidence on record of the case
and acquitted accused for the offence under Section 6 of the
POCSO Act, and therefore, applicant - State of Gujarat begs to
prefer leave to appeal under Section 378 (3) of the Cr.P.C.
NEUTRAL CITATION
R/CR.MA/20961/2023 ORDER DATED: 03/01/2024
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against the order of acquittal for the offence under Section 6 of
the POCSO Act, 2012.
6. Learned Additional Public Prosecutor has further
submitted that the Trial Court has failed to appreciate the
provisions of Section 6 of the POCSO Act. She has further
submitted that the Trial Court has failed to appreciate the
evidence of complainant (the PW-2) - Manjulaben Rameshbhai
Bhagora, mother of the victim at Exh.26 and as per her
deposition, the son of complainant is aged about 7 years and
complainant is staying in hutment area, near Green Apple
Society and doing labour work. She has further submitted that
as per the deposition of the complainant, the incident has
taken place prior to six months and as the on the date of
incident while mother of the victim as well as her sister and
father had gone for walking, the accused-Dinesh committed
offence against nature with son of complainant and therefore,
victim was taken to "A" Division Police Station and complaint at
Exh.27 has been filed against respondent. It is submitted that
the evidence of complainant, gets support from the evidence
of the PW-1 Dr. Ezaz Mohmedyusuf Vekariya at Exh.14 before
whom the accused made confession about commission of
offence and he gave history. Then in that case, the Trial Court
ought to have convicted respondent for the offence under
Section 6 of the POCSO Act, 2012.
7. Considering the submissions advanced by the learned
Additional Public Prosecutor for the applicant and the
avernments made in the application, the present application
NEUTRAL CITATION
R/CR.MA/20961/2023 ORDER DATED: 03/01/2024
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deserves to be allowed. The present application is allowed.
Rule is made absolute.
(A. S. SUPEHIA, J)
(VIMAL K. VYAS, J)
MAHESH/46
