Element Of Love Affair, Virtually Resided As Husband-Wife: Gujarat High Court Suspends Sentence Of POCSO Convict

The applicant-convict approached the High Court in appeal against the judgment and order dated December 12, 2022 by which he was convicted by the POCSO Court, Gandhi Nagar for offences punishable under Section 363 (Punishment for kidnapping), Section 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.), Section 376 (Punishment for rape) of IPC and under Section 4 (Punishment for penetrative sexual assault) and Section 6 (Punishment for aggravated penetrative sexual assault) of the POCSO Act, 2012.

It was highlighted that initially the case was registered under Sections 363 and 366 of IPC and Sections 4 and 6 of the POCSO Act were added during the course of the investigation.

The counsel appearing for the applicant, Bhavik R Samani submitted that the case was of love affair between the applicant, who was aged approximately 21 years, whereas the prosecutorix was also aged 17 years, 2 months and 23 days as on the date of the offence.

It was further submitted that applicant was on regular bail during trial and appeal is likely to consume sometime, therefore, the applicant should be granted permanent bail by suspending the sentence.

The APP appearing for the State, Tirthraj Pandya, opposed the bail application on the ground that the conviction has been recorded based on cogent evidence.

The court observed that applicant is presently aged 23 years and the Appeal of the applicant has already been admitted.

The single judge bench of Justice A. Y. Kogje noted:

“Perusal of the evidence of the prosecutorix indicates to the element of love affair at the relevant time and at that time, the applicant himself was aged 21 years approximately and the prosecutorix was aged 17 years. Evidence also indicates the manner and method, in which the applicant and the prosecutorix had met and had virtually resided as husband and wife, till they were apprehended.”

The court further observed that the applicant has no criminal history.

The court relied upon the judgement of Supreme Court in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421 and allowed the bail application of applicant on conditions.

It further suspended the sentence of the applicant imposed by the trial court till the final disposal of the criminal appeal.

Case Title: Ravi Hareshbhai Patni v. State of Gujarat

Case Citation: 2023 Livelaw (Guj) 45

Coram: Justice A. Y. Kogje

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