RAMESHBHAI SAVABHAI TURI BAROT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application has been filed by the applicant - original accused No. 1 under Section 389 of Code of Criminal Procedure seeking suspension of sentence pending the appeal arising out of the judgment and order of conviction passed by the 4th Sessions Judge / Special Judge (POCSO), Banaskantha at Diyodar in Special (POCSO) Case No.6 of 2018 and 69 of 2017. Initially the charge ­sheet was submitted by the Investigating Officer against the accused Jitubhai @ Jitendrakumar @ Moto Jitu Chhaganlal Turi Barot, which was registered as Special (POCSO) Case No.69 of 2017, and the supplementary charge ­sheet was thereafter submitted against the present applicant and two others, which was registered as Special (POCSO) Case No.6 of 2018. The Special Court after conducting the trial and appreciating the evidence has convicted the present applicant for the offence under Section 7 of the POCSO Act and sentenced him to under rigorous imprisonment for a period of four years and ordered to pay fine of Rs.5,000/ ­, in default thereof to undergo simple imprisonment for a period of 10 days, and acquitted the applicant from the charges levelled against him under Sections 363 , 366 , 376 and 114 of Indian Penal Code, and for the offences under Sections 3(C), 4, 5(L) and 8 of the POCSO Act. The other three accused also have been acquitted from all the charges levelled against them.

(2.) It may to be noted that the State has already preferred an appeal against the acquittal of the present applicant for the offence under Section 376 of the Indian Penal Code and that the present applicant has filed an appeal against his conviction under Section 7 of the POCSO Act, being Criminal Appeal No.1344 of 2019. The present application has been filed seeking suspension of the sentence pending the said appeal.

(3.) The learned advocate Ms. Dipika Bajpai appearing for the applicant submitted that there was no cogent and reliable evidence adduced by the prosecution as regards the birth date of the victim, and even otherwise she was sort of one day only to the completion of 18 years when the incident in question had occurred. Relying upon the statement of victim before the Magistrate under Section 164 of the Cr.P.C., she submitted that the victim had specifically stated that she had voluntarily left her house and gone with the applicant. She also appraised the Court that the victim has already remarried with some other person and the applicant himself is also married.