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2022 DIGILAW 296 (GUJ)

Jaimin v. State of Gujarat

2022-02-17

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. ORDER IN CRIMINAL APPEAL NO. 411 of 2022 1. By preferring this appeal, appellant has requested to quash and set aside the judgment and order sentencing the applicant vide order dated 01.02.2022 passed in POCSO Case No. 39 of 2020 by learned Special POCSO Judge, Court No. 21, City Civil & Sessions Court, Ahmedabad and requested to acquit him from the charges levelled against him. 2. Heard learned advocate for the appellant and learned APP for the respondent-State. 3. Learned advocate for the appellant submits that the judgment and order of conviction and sentence passed by the learned Judge is contrary to law, against the provisions of statute and against the evidence on record. That, there are considerable numbers of discrepancies in the testimonies of the prosecution witnesses through which it can be said that the case of prosecution cannot be relied upon. That, the complainant P.W. 1 is not an eye witness and in his deposition, he stated that on previous occasion the appellant had teased his daughter regarding which the settlement had taken place in police station and complaint was not filed while the same is not disclosed in the FIR. That, the victim girl PW. 2 in her deposition stated that on the second floor she had gone for the clothes whereas, in the statement of the complainant, it is stated on the 3rd floor. That, the victim girl also stated in her cross-examination that she used to talk with the appellant through the mobile phone of her mother and the number was given by her when he used to come to tuition. That, the victim girl also stated in her cross-examination that she did not say about hue and cry in her statement recorded before the police authority and she never told her parents about the threats given by the appellant to her if she does not meet. That, PW No. 3 i.e. Akshaybhai Shashikantbhai Dabgar is no independent witness and is in relation to the complainant and thus the same becomes irrelevant and is a hearsay evidence. That, PW No. 3 i.e. Akshaybhai Shashikantbhai Dabgar is no independent witness and is in relation to the complainant and thus the same becomes irrelevant and is a hearsay evidence. That, the deposition and cross examination of P.W. 4 Mukeshkumar Dinandra Joshi is important as in the cross-examination he states that the entry in the register is done as per say of one Navinbhai Ambalal Dangar and the same was not verified by him and he has denied his signature in the same and thus, the birth date of the victim is also creates doubtful. That, the mother of the victim girl is not examined. 4. Issue requires consideration. 5. ADMIT. Rule. Learned APP waives service of notice of rule for and on behalf of the respondent-State. ORDER IN CRIMINAL MISC. APPLICATION NO. 1 of 2022 6. Rule. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 7. This application is filed by the applicant praying for suspension of sentence vide judgment and order dated 01.02.2022 passed in POCSO Case No. 39 of 2020 by learned Special POCSO Judge, Court No. 21, City Civil & Sessions Court, Ahmedabad and also requested to enlarge the applicant on bail till the hearing and final disposal of the captioned Criminal Appeal. 8. Learned advocate for the appellant submits that the judgment and order of conviction and sentence passed by the learned Judge is contrary to law, against the provisions of statute and against the evidence on record. That, there are considerable numbers of discrepancies in the testimonies of the prosecution witnesses through which it can be said that the case of prosecution cannot be relied upon. That, the complainant P.W. 1 is not an eye witness and in his deposition, he stated that on previous occasion the appellant had teased his daughter regarding which the settlement had taken place in police station and complaint was not filed while the same is not disclosed in the FIR. That, the victim girl PW. 2 in her deposition stated that on the second floor she had gone for the clothes whereas, in the statement of the complainant, it is stated on the 3rd floor. That, the victim girl PW. 2 in her deposition stated that on the second floor she had gone for the clothes whereas, in the statement of the complainant, it is stated on the 3rd floor. That, the victim girl also stated in her cross-examination that she used to talk with the appellant through the mobile phone of her mother and the number was given by her when he used to come to tuition. That, the victim girl also stated in her cross-examination that she did not say about hue and cry in her statement recorded before the police authority and she never told her parents about the threats given by the appellant to her if she does not meet. That, PW No. 3 i.e. Akshaybhai Shashikantbhai Dabgar is no independent witness and is in relation to the complainant and thus the same becomes irrelevant and is a hearsay evidence. That, the deposition and cross examination of P.W. 4 Mukeshkumar Dinandra Joshi is important as in the cross-examination he states that the entry in the register is done as per say of one Navinbhai Ambalal Dangar and the same was not verified by him and he has denied his signature in the same and thus, the birth date of the victim is also creates doubtful. That, the mother of the victim girl is not examined. That, the applicant was released on bail during the entire trial and he has never misused the liberty granted to him. That, there is no likelihood of hearing of main appeal preferred by the present applicant in near future and evidence of the prosecution is not believable and therefore, impugned judgment and order passed by the trial Court is required to be suspended till hearing and final disposal of the captioned Criminal Appeal. 9. Learned APP for the respondent-State has strongly objected the submissions made by learned advocate for the applicant and submitted that trial Court has rightly convicted the present applicant as he has been involved in the serious offence and requested this Court to dismiss the present application. 10. Having heard learned advocate for the applicant as well as learned APP for the respondent-State and perused the depositions of the complainant as well as the victim-daughter examined by the prosecution before the trial Court, it appears that there is material contradictions in the deposition of the victim girl. 10. Having heard learned advocate for the applicant as well as learned APP for the respondent-State and perused the depositions of the complainant as well as the victim-daughter examined by the prosecution before the trial Court, it appears that there is material contradictions in the deposition of the victim girl. Witness mother of the victim is not examined by the prosecution witnesses. PW-4 Mukeshkumar Dinandra Joshi has also accepted in his cross-examination that entry in the register is done by say of one Navinbhai Ambalal Dangar and same was not verified by him. He had denied his signature in the same and therefore, the birth date of the victim appears to be doubtful. PW. 5 has also admitted that complaint was not filed in his presence. That, trial Court suspended the order of conviction vide order dated 1st February, 2022 for a period of 30 days. The Criminal Appeal against the sentence preferred by the applicant has been admitted by this Court today i.e. on 17.2.2022 and said Criminal Appeal is not likely to be heard within near future. 11. For the aforesaid reasons, present application stands allowed. Pending hearing and final disposal of Criminal Appeal No. 411 of 2022, the order of sentence imposed upon the applicant vide order dated 01.02.2022 passed in POCSO Case No. 39 of 2020 by learned Special POCSO Judge, Court No. 21, City Civil & Sessions Court, Ahmedabad shall be suspended and the applicant is ordered to be released on bail on furnishing personal bond of Rs. 10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the trial court and on the following conditions: (a) shall maintain law and order; (b) shall not indulge in any activity leading to breach of public peace and tranquility. (c) shall not leave the State of Gujarat without prior permission of this Court. 12. Rule is made absolute. 13. Registry shall communicate this order to the concerned Sessions Court as well as concerned Jail Authorities through Fax/Email.