SURESH GUMJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Advocate Shri A.A. Zabuawala for the applicant- appellant and learned Additional Public Prosecutor Ms. Krina Calla for the respondent-State. By way of this application the applicant-appellant seeks suspension of substantive sentence imposed vide judgement and order dated 22.11.2019 passed by learned Special Judge (POCSO) and 2 nd Additional Sessions Judge, Rajkot at Dhoraji in Special POCSO Case No. 10 of 2019 whereby the learned Sessions Court has convicted the applicant and further sentenced the applicant as hereinbelow. Offence Sentence

(2.) The case against the applicant in brief is that criminal complaint came to be filed by one Vajiyabhai Nagariyabhai Hatila inter alia alleging that the victim was his daughter and that in the year 2018 when the victim was minor the applicant had enticed her to elope with him. That the victim and the applicant were apprehended by the police after three months of the elopement and whereas after charge-sheet the case came to be committed to the learned Special POCSO Judge, Dhoraji District Rajkot where charge came to be framed against the applicant and ultimately vide judgement and order dated 22.11.2019, learned Special (POCSO) and 2 nd Additional Sessions Judge, Rajkot at Dhoraji had been pleased to convict and sentenced the applicant as stated herein-above.

(3.) Learned Advocate for the applicant at the outset submits that the learned Sessions Court had committed grave error in considering the depositions of the witnesses more particularly the deposition of the victim herself. Therefore under such circumstances, he prays that the substantive sentence against the applicant may be suspended and the applicant may be released on regular bail. Learned Advocate for the applicant has taken us through the statement of the victim recorded after the applicant and victim were apprehended on 30.03.2019 as well as the statement of the victim under Section 164 of Cr.P.C as well as the history given by the victim before the Doctor who had examined her. According to the learned Advocate all these three statements are consistent with each other, wherein the victim says that she had travelled from Boriya Village to Kalavad and from there to Rajkot and that the applicant was waiting for her at Rajkot and whereas it was the victim who had called the applicant at Rajkot. Learned Advocate further submits that there was love affair between the victim and the applicant and that at the relevant point of time the applicant was aged around 21 years. He further submits that from Rajkot the applicant and victim had travelled to Gandhidham where applicant had got employment in a factory; that they had lived there as husband and wife. He further submits that in her deposition the victim while having given different version of the events, has ultimately also stated that she had given statement to the police, doctor and the learned Judge. Learned Advocate has also taken us through the statement of one doctor Atul Dhirajlal Joshi who had examined the victim. He had opined after physical examination of the victim that physical intercourse could not be ruled out. Learned Advocate had also taken us through the deposition of the Investigating Officers namely Shri K.R. Ravat who was C.P.I, Dhoraji at that time and who had initially investigated the case. The Investigating Officer in his deposition has stated that from the statement of the victim the fact of love affair between the victim and the applicant had been revealed. He further states that it was the victim who had called the applicant at Rajkot. He also reveals that from the investigation it was revealed that the parents of the victim were planning to get her married to one Kiran, which marriage was not to the liking of the victim and therefore she had run away from her home. From the deposition, learned Advocate has reiterated his submission that this was a case of love affair between the applicant and the victim, the victim on her own accord had run away from her home, who had caught the bus at night and travelled form her Village to Kalavad where she had alighted from the said bus and had gone to Rajkot where applicant had been waiting, upon being called by the victim, the victim had gone with the applicant to Gandhidham where they had stayed as husband and wife. According to the learned Advocate the cause for the victim running from her home was that her parents were forcing her to get married to a person whom she did not like. Thus learned Advocate had submitted that looking to the age of the applicant at the relevant point of time and the fact that it was the victim who had called the applicant and the fact that physical intercourse between the applicant and the victim is not clearly established from the deposition of the Doctor, therefore he submits that the substantive sentence imposed by the learned Sessions Court may be suspended.