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2025 DIGILAW 725 (GUJ)

Pavankumar Munshiram Kumbhar v. State of Gujarat

2025-07-10

ILESH J.VORA, P.M.RAVAL

body2025
ORDER : 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. By way of this application under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023, the applicant-Pavankumar Munshiram Kumbhar-original accused seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 13.5.2025 by the learned Special Judge (POCSO) & Additional Sessions Judge, Porbandar in Special POCSO Case No.10 of 2023. 3. By the aforesaid judgment and order of conviction and sentence, the present applicant convict has been held guilty for the commission of offences as stated hereinbelow : Section Imprisonment Fine in Rs. In default of payment of ?ne. 4 r/w 17 of POCSO Act 20 years RI 10000/- RI for 15 days 6 r/w 17 of POCSO Act 20 years RI 10000/- RI for 15 days 8 r/w 17 of POCSO Act 3 years RI 2000/- RI for 15 days 4. Learned advocate Mr.Vishal Anandjiwala appearing for the applicant has mainly contended as follows: (a) That the role of the applicant accused is of abetment in the commission of offence since the applicant has just accompanied the accused No.1 from Rajasthan to Porbandar. (b) That the prosecution has failed to establish that the applicant herein had either instigated, forced, supported or encouraged the accused No.1 to elope with the prosecutrix. (c) That the prosecutrix in her deposition has admitted that there was love affair between her and the accused No.1. (d) That in the cross examination, the prosecutrix has admitted that when her mother had reached Panchgaon, at that time, the applicant was not present and that the applicant herein has not even tried to commit any wrong thing. (e) That looking to the evidence of the prosecutrix, no overt act has been attributed to the applicant herein. Therefore, it is prayed for suspension of sentence. 5. On the other hand, Mr.Bhargav Pandya, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is argued that the present application requires no indulgence at the hands of this Court since the present accused has been convicted for serious offence punishable under the POCSO Act. It is argued that the present application requires no indulgence at the hands of this Court since the present accused has been convicted for serious offence punishable under the POCSO Act. It is further argued that the case against the applicant herein has been proved beyond reasonable doubt before the learned trial Court and what has been stated by the learned advocate for the applicant requires thorough reappreciation of evidence which is not permissible at the stage of considering the application for suspension of sentence. Thus, learned APP has argued to reject the present application. 6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. 7. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 430 of the Bhartiya Suraksha Sanhita 2023 or not? 8. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order. In a serious offence of attracting the rigorous punishment, the Appellate Court has to assess the record only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Another , (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under : “30. In Kishori Lal v. Rupa , (2004) 7 SCC 638 , this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-640, paras 4-6) "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 31. In Vijay Kumar v. Narendra , (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal , (2002) 9 SCC 366 , it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar v. Narendra , (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal , (2002) 9 SCC 366 , it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar v. Narendra , (2002) 9 SCC 364 , it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 3021PC, the court should consider 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, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra , (2005) 5 SCC 281 and Gomti v. Thakurdas , (2007) 11 SCC 160 . 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 9. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order and the charges levelled against the present accused. It transpires that the role of the applicant is of abetment in commission of the offence and looking to the evidence of the prosecutrix, no overt act has been attributed to the applicant herein. Therefore, the applicant has made out a prima facie case for suspension of sentence. Hence, without discussing merit and demerit of the case which would prejudice the case of either side and also considering the fact that there are no chances of the present appeal being heard in near future, the application deserves consideration. 10. Having considered the peculiar facts and circumstances of the present case, the applicant convict stands on fair chance of acquittal and should not be kept behind the bars till conclusion of the appeal since there is no likelihood of the present appeal being taken up for final hearing in near future. Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicant and to enlarge him on bail pending Criminal Appeal. 11. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 13.05.2025 by the learned Special Judge (POCSO) & Additional Sessions Judge, Porbandar in Special POCSO Case No.10 of 2023 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court subject to conditions that : (a) he shall not take undue advantage of the liberty or misuse the liberty; (b) he shall not leave India without the prior permission of the concerned Sessions Court; (c) he shall furnish the present address of his residence to the court concerned at the time of execution of the bond and shall not change the residence without the prior permission of the concerned Sessions Court. (d) he shall proceed with the Criminal Appeal as and when it may be listed. 12. (d) he shall proceed with the Criminal Appeal as and when it may be listed. 12. Rule made absolute to the aforesaid extent. Direct service is permitted.