IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.

1 of 2022 In R/CRIMINAL APPEAL NO. 1919 of 2022 ==========================================================

PRASHANT @ PIYUSH VINODBHAI BAVALIYA Versus STATE OF GUJARAT ==========================================================

Appearance:

MS URVASHI K MEHTA(11469) for the PETITIONER(s) No. 1 MR TIRTHRAJ PANDYA, APP for the RESPONDENT(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE S.H.VORA and HONOURABLE MS. JUSTICE S.V. PINTO Date : 03/05/2023

IA ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

Rule returnable forthwith. Learned APP waives service of rule on behalf of respondent – State.

1. By way of present application under section 389 of Code of Criminal Procedure, the applicant – accused seeks suspension of sentence imposed upon him for the offences punishable under sections 363, 366, 376(2)(n), 376(3) of IPC and section 4 and 6 of the POCSO Act as per judgment rendered on 28.07.2022 passed in Special Case (POCSO) No.10 of 2022 by the learned Additional Sessions Judge, Gondal.

2. The prosecution case as unfolded before the learned Trial Court is such that the complainant lodged complaint inter alia alleging that on 10.03.2022 the applicant accused took her daughter with him with a promise to marry her and thereafter, committed offence of rape. Thus, complaint being C.R.No.11213015220471 of 2022 before the Gondal City Police Station was registered against the applicant for the aforesaid offences.

3. On registration of FIR, investigation was carried out and after collecting oral and documentary evidence, charge sheet came to be filed against the applicant, but the applicant pleaded not guilty and claimed trial.

4. The prosecution has examined in all 8 witnesses including victim – complainant and her mother and also produced documentary evidence, so as to bring home charge. In further statement recorded under section 313 of the Cr.P.C, the accused denied incriminating circumstances put to him and further stated that false case has been filed against him.

5. At the end of trial, learned Additional Sessions Judge found accused guilty for the aforesaid offences and convicted the applicant under section 363 of IPC and sentenced to undergo RI for 3 years and fine of Rs.5000/-, in default of payment of fine to undergo further SI for one month, under section 366 of IPC and sentenced to undergo RI for 3 years and fine of Rs.5000/-, in default of payment of fine to undergo further SI for 1 months, under section 376(2)(n) of IPC and sentenced to undergo RI for 20 years and fine of Rs.10,000/-, in default of payment of fine to undergo SI for one year, under section 376(3) of IPC and sentenced to undergo RI for 20 years and fine of Rs.10,000/- in default of payment of fine to undergo SI for one year, under section 4 of POCSO Act and sentenced to undergo RI for 20 years and fine of Rs.50,000/-, in default of payment to undergo SI for one year and under section 6 of POCSO Act and sentenced to under RI for 20 years and fine of Rs.50,000/-, in default of payment of fine to undergo SI for 1 year.

6. Pending hearing of the appeal, the applicant has preferred present application for suspension of sentence, principally on the ground that in absence of cogent and reliable evidence, judgment of conviction is recorded by the learned Additional Sessions Judge and therefore, present application may be considered.

7. Learned APP has opposed present application and supported the the findings recorded by learned Sessions Judge and submitted that no case is made out to entertain present application. He has further submitted that it is not open to Court to re-assess, re-analysis evidence under section 389 of Cr.P.C. and suspend the execution of sentence and release the convict on bail. At the end, he submitted that present application may be rejected.

8. It is settled by the Hon’ble Supreme Court in various pronouncements t