SAJAN AJMALBHAI KHIMANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under section 389 of the Code of Criminal Procedure, 1973 (for short, "the Code"), the applicant­convict seeks suspension of the execution of the sentence awarded by the learned Special (POCSO) Judge, Jamnagar, vide judgment and order dated 06.07.2019 passed in Special (POCSO) Case No.42 of 2016, whereby the applicant has been convicted for the offence under sections 324, 363, 366, 376(2)(i, m, d), 506(2) read with section 34 of Indian Penal Code and sections 4, 6, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act").

(2.) Mr. A.D. Shah, learned counsel appearing with Mr. Ashish M. Dagli, learned advocate for the applicant, submitted that a conviction can be based on direct or circumstantial evidence and that it can never be based on corroborative statements, in the nature of previous statements of witnesses. It was submitted that previous statement made by a witness can be relied upon to corroborate the testimony of such witness. However, when there is no substantive evidence of any prosecution witness and conviction is recorded on the basis of corroborative evidence, which is not genuine, then the same would be contrary to criminal jurisprudence, as laid down by the Supreme Court in a catena of decisions. This is exactly what the trial court has done in the present case.

(3.) On the other hand, Ms. C.M. Shah, learned Additional Public Prosecutor, has supported the prosecution case and has submitted that the prosecutrix had lodged a complaint before the police alleging the commission of offence under section 376 IPC as well as other provisions. It was submitted that, however, the prosecutrix has not supported the prosecution case and has been declared hostile. It was submitted that considering the gravity of the offence in question, the trial court has rightly convicted the applicant and other accused for the offence in question and that, having regard to the facts and circumstances of the case, this court may not exercise discretion in his favour.