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2022 DIGILAW 618 (GUJ)

Rajeshbhai Babubhai Chhanura v. State Of Gujarat

2022-04-29

B.N.KARIA

body2022
ORDER : ORDER IN CRIMINAL APPEAL NO. 191 of 2022 1. By way of preferring this Criminal Appeal under Section 374(2) of the Cr.P.C., appellant has prayed to quash and set aside the judgment and order dated 07.10.2021 passed by learned Special Judge & Additional Sessions Judge, Jamnagar in Special POCSO Case No.10 of 2018. 2. Heard learned advocate appearing for the appellant. 3. It is submitted by learned advocate appearing for the appellant that there is no single eye witness who had seen the incident and only on the evidence of the complainant and appellant was convicted. That event, victim has not supported the case of the prosecution and therefore, in absence of any other reliable evidence, learned trial court ought not to have convicted the appellant under Section 376 of the I.P.C. and POCSO Act. It is further submitted that all the witnesses examined by the prosecution are interested witnesses and no independent witnesses have been examined by the prosecution. 4. Issue requires admission. 5. ADMIT. Learned APP waives service of notice of admission for and on behalf of respondent-State. (B.N. KARIA, J) ORDER IN CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2022 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State. 2. By way of preferring this application, applicant has prayed for following relief: “(A) Pending hearing and final disposal of the above criminal Appeal, Your Lordships may be pleased to release the applicant on bail by suspending the substantive sentence passed by the Ld. Special Judge & Additional Sessions Judge, Jamnagar by his judgment and order dated 7/10/2021 in Special Case Pocso No.10 of 2018.” 3. Heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State. 4. It is submitted by learned advocate appearing for the appellant that there is no single eye witness who had seen the incident and only on the evidence of the complainant and appellant was convicted. That event, victim has not supported the case of the prosecution and therefore, in absence of any other reliable evidence, learned trial court ought not to have convicted the appellant under Section 376 of the I.P.C. and POCSO Act. It is further submitted that all the witnesses examined by the prosecution are interested witnesses and no independent witnesses have been examined by the prosecution. It is further submitted that all the witnesses examined by the prosecution are interested witnesses and no independent witnesses have been examined by the prosecution. That applicant has good prima facie case on merits and there are all chances that the applicant may succeed in the appeal and that the applicant may be acquitted in the appeal. That appeal will take long time for hearing and no purpose would be served by keeping the applicant in jail. Hence, it is requested by learned advocate appearing for the applicant to allow present application. 5. Learned APP appearing for the respondent-State has objected the submissions made by learned advocate appearing for the applicant and submitted that trial court has rightly convicted the present applicant. Hence, it was requested by learned APP appearing for the respondent-State to dismiss this application. 6. Having heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State as well as evidence produced on record, it appears that father of the victim who is the original complainant was examined before the learned trial court vide P.W. 1 (Exh.10). He has stated in his deposition that agreement executed on 12.01.2018 before the Notary, which was written by force as per the instructions of Babubhai. He has denied that any police complaint was made by him. He has further denied that he voluntarily made his signature before the Notary. He has further stated that he was not happy to execute the agreement as he was informed that if he would execute the agreement, custody of the daughter would be handed over to him. He has also admitted that as per the instructions issued to him by the Police Offcials, he had put his signature. Further, if we consider the deposition of the victim herself P.W.2 at Exh.12, wherein in her cross examination, she has accepted that she was not abducted by the present applicant/accused nor any threat was given to her. She has also admitted that she was not taken away by the present applicant at any place or stayed with him or any force was made by the present applicant. She further admits in her cross examination that no history was given by her before the doctor. The statement before the police was given by her but no incident was taken place as stated in her statement. She further admits in her cross examination that no history was given by her before the doctor. The statement before the police was given by her but no incident was taken place as stated in her statement. Her birth date was written under the presumption by her father. Admittedly, the present applicant was released on bail during the course of trial and there is nothing pointed out by the prosecution that liberty granted to the applicant was misused by him. Criminal Appeal preferred by the present applicant would take reasonable time for final disposal. As the applicant was released on bail during the trial and he has not misused the liberty. 7. Considering the depositions of the prosecutrix herself before the trial court as well the father of the prosecutrix, this Court is of the considered view that prayer made by the applicant requires consideration. 8. Accordingly, present application is hereby allowed. The impugned judgment and order dated 07.10.2021 passed by learned Special Judge & Additional Sessions Judge, Jamnagar in Special POCSO Case No.10 of 2018 shall be suspended till final disposal of the captioned Criminal Appeal No.191 of 2022. 9. During hearing and final disposal of the captioned criminal appeal, the applicant is ordered to be released on regular bail on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned 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. 10. Rule is made absolute. Direct service is permitted.