JUDGMENT :

(A.S. Supehia, J.)

1. RULE. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. The present application has been preferred by the applicants-convicts under the provisions of Section 389 of the Code of Criminal Procedure, 1973 (for short, the ‘CRPC’), for suspension of sentence imposed upon them vide judgment and order of conviction dated 28th February 2023 passed by the learned Special Judge & Additional Sessions Judge, Sabarkantha at Himmatnagar, in Special (Atrocity) Case No.16 of 2019.

3. By the aforesaid judgment and order, the learned Special Judge has convicted the applicants-appellants for the offences punishable under Sections 376(D), 342, 450 and 506(2) of the INDIAN PENAL CODE , 1860 (for short, the ‘IPC’). For the offence punishable under Section 376(D) of the IPC, the applicants-appellants have been imposed sentence to suffer rigorous imprisonment for life and also to pay a fine of Rs.50,000=00 and in default of payment of fine, further to suffer simple imprisonment for one year. Moreover, since the applicants- appellants have been imposed sentence to suffer rigorous imprisonment for life, therefore, no separate sentence has been imposed upon the applicants-appellants for the other offences punishable under Sections 342 , 450 and 506(2) of the IPC.

4. At the outset, learned advocate Mr.Mangukiya submitted that since the applicant no.1 (original accused no.1) is absconding and is not traceable, he is pressing the present application only qua the applicant no.2 (original accused no.4) Sirajbhai Yusufbhai Multani and applicant no.3 (original accused no.5) Sadik Allarakhabhai Multani.

5. As per the charge (Exh.42), there are five accused arraigned in the offence and the charge is also framed under Sections 3(1)(w)(i), 3(2)(v) of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the ‘Atrocities Act’). However, at the end of the trial, the trial court has acquitted all the accused for the offences punishable under the provision of the Atrocities Act.

6. It is stated before us by learned advocate Mr.Mangukiya as well as the learned APP that, as on today, the complainant has not filed any appeal challenging the acquittal of the present applicants-appellants for the offences punishable under the provisions of the Atrocities Act. The State has also not preferred any appeal.

7. When the matter was taken up for hearing, learned APP, while pointing out the provisions of the Atrocities Act, more particularly, Section 15A(5), has submitted that since the offence of the Atrocities Act was also made a part of the charge, while passing any orders in favour of the present applicants, the complainant or the victim is required to be heard. In support of his submission, learned APP has placed reliance on the Division Bench judgment of this Court in the case of Hemal Ashwin Jain (Sheth) vs. Union of India , reported in (2021) 2 GLR 1343 . Whereas, learned advocate Mr.Mangukiya has submitted that, while examining the application filed by the present applicants seeking suspension of sentence, in the wake of acquittal of the present applicants for the offences under the provisions of the Atrocities Act, the complainant or the victim is not required to be heard. He has submitted that the acquittal of the applicants of the offences for which the charge was framed under the Atrocities Act has been accepted by the complainant as well as the State since no appeal has been filed. Hence, it is urged that t