JAKIR ISHAKBHAI NAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Jakir Ishakbhai Nat, applicant-original accused has filed this application under Section 389(1) of the Criminal Procedure Code for suspension of sentence imposed by the learned Additional Sessions Judge, Fast Track Court No.4, Surat in Sessions Case No.66 of 2004 vide judgment and order dated 27/12/2004.

(2.) Heard Mr.N.N.Prajapati, learned advocate for the applicant-original accused. He has stated that the learned Judge by impugned judgment, has convicted the accused under Sections 363 (punishment for kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage etc.) and 376 (punishment for rape) of the Indian Penal Code for three years and for seven years respectively. The accused is in jail since 27/12/2004. Prior to that also for about ten months, he was in jail. So on that aspect he has prayed for suspension of the sentence in this behalf. For the same, the learned advocate has relied upon the Division Bench judgment of this Court (Coram:R.P.Dholakia and H.N.Devani, J.J.) in the case of Asgarali Onali Lokhandwala and another v. The State of Gujarat dated 11/5/2007 in Criminal Misc. Application No.2755 of 2007 in Criminal Appeal No.29 of 2007, where the Division Bench of this Court has observed that it has been consistently held by the Hon'ble Apex Court that in case where a convicted person has been sentenced to a fixed period of imprisonment, ordinarily the sentence should be suspended and rejection should be only by way of exception for which reasons should be put forward.

(3.) On the other hand, Mr.K.C.Shah, learned APP has strongly objected for the bail. He has stated that in this case, it was the case of the complainant before the Trial Court that on 8/1/2004 at about 7:00 a.m., the complainant Sayrabibi-wife of Shaikh Salim Yasin had gone for work and her children were at home. When she came at home, her elder daughter aged fifteen years and six months was not present in the house. She asked to her children about the girl i.e. victim and children replied that they did not know and thereafter, she inquired in the area but her daughter was not found. Thereafter, she called her husband and her husband had stated that when he had gore at 8:00 a.m., she was at home. Thereafter, complainant, her husband and other members of the area had inquired about the victim and they came to know that her daughter was kidnapped by one Mohammad Jakir Nizamkhan, originally residing near Hero Honda Agency, Zansi Road, Chatrapur, Madhya Pradesh and was residing near their area in house no.395 in street no. 18. It was believed that by giving promise to marry with her, he kidnapped her and committed rape and hence police complaint has been filed on 13/1/2004 at Salabatpura Police Station and evidence was recorded. The learned Judge by his judgment and order dated 27/12/2004, pleased to convict the accused for the offences committed under Sections 363, 366 and 376 of the Indian Penal Code far seven years. When the matter was presented before this Court, this Court has admitted the appeal on 17/2/2006. Thereafter, bail application was also filed. This Court has rejected the said application for bail vide order dated 14/3/2006.