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CR.MA/7700/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7700 of 2010
In
CRIMINAL
APPEAL No. 1149 of 2010
=======================================================
AMANAT
@ PATIYO SAFARBHAI SHAIKH - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=======================================================
Appearance :
MR
LR PATHAN for Applicant(s) : 1,
MR LR POOJARI APP for
Respondent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 16/08/2010
ORAL
ORDER
The
present application has been filed by the applicant-accused under
Section 389 of the Code of Criminal Procedure, 1973 for suspension
of sentence.
The
applicant-accused has been convicted as per Judgment & Order
rendered in Special (Atrocity) Case No.31 of 2006 by the Learned
Special Judge, Additional Sessions Judge, (F.T.C.No.2), Bhavnagar
dated 24.06.2010 recording conviction of the accused for the offence
under Section 376 of the Indian Penal Code for rigorous imprisonment
for seven years and fine of Rs.5,000/-, in default, rigorous
imprisonment for one year and also imposing sentence for the offence
under Section 3(1)(11)(12) of the Scheduled Castes & Scheduled
Tribes (Prevention of Atrocities) Act for rigorous imprisonment for
one year and fine of Rs.1,000/-, in default, rigorous imprisonment
for three months.
Learned
counsel, Mr.Pathan has referred to the judgment and order as well as
R & P, which has been called for and referring to the testimony
of the witnesses including the P.W.No.2, who is mother of the victim
as well as the testimony of the victim and other papers, he
submitted that there were implied consents and it was only after
some incident, the complaint is filed. He, therefore, submitted that
the present application may be allowed.
Learned
A.P.P., Mr.Poojari resisted the present application. He referred to
the testimony of the victim and emphasized that it was because of
the treat, she may not have stated, but whatsoever she has stated is
corroborated by other evidence including the history given before
the doctor. He, therefore, submitted that the present application
may not be entertained.
In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not.
As
this Court is not required to consider and scrutinize the evidence
in detail at this stage. However, for considering the aspect of
suspension of sentence under Section 389 of the Code of Criminal
Procedure for releasing the applicant on bail, the nature of
offence, role and other evidence is required to be considered along
with the guidelines laid down by the pronouncement of the Apex Court
under Section 389 of the Code of Criminal Procedure. Having regard
to the testimony of the witnesses and other evidence, it would be in
the fitness of things to allow the present application.
Accordingly,
the present application stands allowed. Substantive sentence imposed
by the Learned Special Judge, Additional Sessions Judge,
(F.T.C.No.2), Bhavnagar in Special (Atrocity) Case No.31 of 2006 as
per Judgment & Order dated 24.06.2010 shall remain under
suspension till final hearing and disposal of this appeal and the
applicant-accused is ordered to be released on bail on his executing
a bond of Rs.10,000/- (Rupees Ten Thousand Only) with one solvent
surety of the like amount to the satisfaction of the lower Court and
subject to the conditions that he shall:
(a) not
take undue advantage of his liberty or abuse his liberty.
(b) not
to try to tamper with the evidence or pressurize the prosecution
witnesses or complainant in any manner.
(c) maintain
law and order.
(d) surrender
his passport, if any, to the lower Court, within a week.
Rule
is made absolute to the aforesaid extent. Direct service is
permitted.
(RAJESH
H.SHUKLA, J.)
/patil
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