KANTIBHAI ARJANBHAI BHARVAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The application has been filed by the applicant - appellant (original accused) under Section 389 of Cr. P.C., seeking suspension of his sentence pending the appeal arising out of the judgement and order of conviction dated 1.2.2020 passed by the Special (POCSO) Court, Arvalli at Modasa (hereinafter referred to as "the trial Court") in Special POCSCO Case No.28/2018.

(2.) The applicant - accused was tried for the offence under Section 376 of IPC and Sections 4, 8, and 12 of the Prevention of Child from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act") by the trial Court in respect of the complaint filed by the complainant - prosecutrix on 21.3.2018 before the Malpur Police Station, Arvalli registered as FIR No.I- 0017/18. The trial Court after appreciating the evidence on record has convicted the applicant - accused and has sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.10,000/-, and in default thereof, to undergo simple imprisonment for six months for the offence under Section 376 of IPC. Being aggrieved by the said judgement and order, the applicant - appellant has preferred the Criminal Appeal being No.438 of 2020, which has been admitted by this Court and is pending for the final hearing. Pending the said appeal, the present application has been filed by the applicant - accused under Section 389 of Cr. P.C., seeking suspension of his sentence.

(3.) The learned Sr. Advocate Mr.Syed for the applicant has vehemently submitted that the age of the prosecutrix having not been duly proved, the applicant has been acquitted for the offence under the POCSO Act and that there was no cogent evidence for convicting the applicant for the offence under Section 376 of the IPC. According to him, there were number of contradictions in the evidence of the prosecutrix and the medical evidence. The blood/semen samples of the husband were not taken by the Investigating Officer. The scientific evidence, more particularly the serological report did not give any headway to the case of prosecution. The case of the prosecution rested solely on the evidence of the prosecutrix, which could not be said to be of a very sterling quality. Placing reliance on the unreported decision of the Supreme Court in case of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, in Criminal Appeal No.264 of 2020 decided on 14.2.2020, Mr.Syed submitted that the sterling witness should be a very high quality and calibre, whose version should be unassailable and that the evidence of such witness should be of such a nature that on its face value, the Court, without any hesitation should be able to accept it. Mr.Syed has also placed reliance on the decision of the Supreme Court in case of Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat, reported in (1999) 4 SCC 421 to buttress his submission that the High Court should take a lenient view in the matter of suspension of sentence, where the appeal is not likely to be heard in near future and the sentence is of a fixed period imposed on the appellant - accused. Reliance was also placed on the decision of the Delhi High Court in case of Ranjit Kumar Vs. State, reported in 2012 SCC OnLine Del 100 to submit that the appellant has prima facie an arguable case going to the root of the matter, and hence, the discretion should be exercised in favour of the appellant for suspending the sentence. Mr.Syed further submitted that the accused was falsely implicated as the husband of the prosecutrix had borrowed money from the accused and the accused was demanding the same from her husband, which resulted into an enmity between the accused and the husband of the prosecutrix. Mr.Syed lastly submitted that the version of the prosecutrix was not believable inasmuch as the alleged place of offence was a public place and if the appellant had forcefully taken her to the bushes or the ravine and committed the wrongful act as alleged, there would be scratches on her body, however, no such injury or scratches were found on the body of the prosecutrix.