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CR.MA/1432/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1432 of 2011
In
CRIMINAL
APPEAL No. 181 of 2011
=========================================
NITIN
@ MANISH GOVINDBHAI SARVAIYA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR
SATYAM Y CHHAYA for
Applicant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/02/2011
ORAL
ORDER
By
way of present application filed under Section 389 of the Code of
Criminal Procedure, 1973, the applicant has inter alia prayed to
enlarge him on bail pending the appeal suspending the judgment and
order of sentence dated 05th January 2011 passed by the
learned Additional Sessions Judge, Fast Track Court No.3, Gondal in
Sessions Case No.142 of 2008.
Heard
Mr.Satyam Chhaya, learned counsel for the applicant and Mr.H.L.
Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Chhaya
has contended that there are contradiction in the oral evidence of
the prosecutrix and complainant. He has also contended that the
prosecutrix is not minor at the event of incident in question. He
has also contended that this is a case of consent. He has also
contended that the applicant is a young boy aged 20 years. He has
further contended that the applicant is on bail during the trial. He
has also contended that there are certain love letters, which are
the part of the charge-sheet to show that this is a case of consent.
He, therefore, contended that looking to the overall facts and
circumstances of the case, present application is required to be
allowed and applicant is required to be enlarged on bail.
As
against this, Mr.Jani has read the judgment and order passed by the
learned trial Judge and contended that the order passed by the
learned Judge is absolutely just and proper and no interference is
required to be called for. He has contended that the applicant has
forcibly taken the prosecutrix with him. He has also contended that
the applicant has threatened the prosecutrix and because of the fear
only, the prosecutrix gone with the applicant. He has also contended
that medical certificate is also supported the case of the
prosecutrix. He has also contended that the applicant has committed
serious offence against her wish and will and therefore, present
application deserves to be dismissed.
I
have perused the papers produced before me as well as submissions
advanced by the learned counsel for the parties. Looking to the
papers, it appears that prosecutrix was threatened by the applicant
and therefore, under the threat, the prosecutrix had gone with the
applicant. It also appears from the papers that the prosecutrix was
tempted and by force and against her wish and will, the applicant
has committed rape. Even, medical certificate is also supported the
case of the prosecution.
In
view of above, I am of the opinion that present application deserves
to be dismissed and is hereby dismissed.
(Z.
K. Saiyed, J)
Anup
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