GORDHAN @ HITESH @ SAGAR MOHANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The application has been filed under Section 389 of Cr. P.C., by the applicant-appellant, seeking suspension of his sentence pending the appeal being Criminal Appeal No.1758 of 2019 arising out of judgment and order dated 10.08.2016 passed by the Special Judge, Surendranagar in Special (POCSO) Case No.30 of 2015, whereby the Special Court, Surendranagar has imposed punishment of rigorous imprisonment for a period of 7 years for the offence punishable under section 376, rigorous punishment for a period of 2 years for the offence punishable under section 363 and rigorous imprisonment for a period of 2 years for the offence punishable under section 366 of the Indian Penal Code.

(2.) It is sought to be submitted by learned Advocate Mr.Pratik Barot for the applicant?convict that as transpiring from the evidence adduced by the prosecution and the findings recorded by the Special Court, no case under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') was made out. According to him, the victim herself had stated in the history given to the Medical Officer at the time of her medical examination and in her statement recorded under section 164 of the Code of Criminal Procedure before the Magistrate that she had voluntarily accompanied the applicant?convict and had stayed with him for more than about one month. He further submitted that the applicant?convict has already undergone 4 years imprisonment and he is ready to abide by any conditions that may be imposed by the Court.

(3.) However, learned APP Mr.H.K.Patel for the respondent?State vehemently opposed the present application for suspension of sentence by submitting that the Special Court has wrongly not held the applicant guilty of the offence under POCSO Act, for which the State has already preferred an appeal. According to him, considering the stringent provisions of POCSO Act and considering the age of the victim being 17 years, the offence under section 376 of the Indian Penal Code read with offence under sections 3(a) and 4 of the POCSO Act are clearly made out.