Gujarat High Court
Kunal Umeshbhai Gandhi vs State Of Gujarat on 14 March, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/34463/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
34463 of 2016
In CRIMINAL APPEAL NO. 1783 of 2016
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KUNAL UMESHBHAI GANDHI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR BM MANGUKIYA with MR CB GUPTA, ADVOCATE for the Applicant(s)
No. 1
MR K S CHANDRANI, ADVOCATE for the Respondent(s) No. 1
MR NJ SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 14/03/2017
ORAL ORDER
1. The applicantoriginal accused of Sessions Case No.43 of 2014, who is convicted by the learned Additional Session Judge, Limbdi, Dist.Surendranagar for the offence punishable under Section 493 of the Indian Penal Code has filed the present application for bail. The applicant is sentenced to undergo R.I. for a period of 10 years with fine of Rs.10,000/ and in default to further undergo 06 months R.I. Page 1 of 8 HC-NIC Page 1 of 8 Created On Wed Mar 15 00:36:15 IST 2017 R/CR.MA/34463/2016 ORDER for the offence under Section 493 of the Indian Penal Code. The applicant is also sentenced to undergo R.I. for a period of 07 years with fine of Rs.10,000/ and in default to further undergo 06 months R.I. for the offence under Section 494 of the Indian Penal Code. The applicant is acquitted for the offence under Sections 376, 377, 328, 406, 420, 465, 467, 468, 471, 181, 506(2), 504 and 120(B) of the Indian Penal Code.
2. Heard Mr.Y. M.B.M.Mangukiya, learned counsel with Mr.C.B.Gupta, learned counsel for the applicant and Mr.N.J.Shah, learned Additional Public Prosecutor for the respondentState.
3. The allegations made in the FIR to the effect that in the year 2012 the original complainant was doing course of Company Secretary and was also doing articleship in Gujarat Power Corporation and in April, 2012 the original complainant stayed for company work at Pandit Din Dayal Petroleum University for 10 days and original complainant came in contact with accused as the accused was serving as Engineer in Pandit Din Dayal Petroleum University.
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The further allegation in the complaint were to the effect that thereafter both of them came closed to each other and accused said that he is unmarried and wants to marry original complainant, at that time the original complainant told the accused to talk to her parents for marriage and therefore the accused talked to the victim's parents for marriage and decided to marry in June, 2012.
4. The further allegations are to the effect that when the original complainant told accused marriage should be as per the custom and rituals, at that time accused told that marriage talk of his sister is going on and as original complainant and accused are of different caste and if talk about marriage of original complainant with accused will spread then there may be problem in the marriage of accused's sister and, therefore accused insisted to wait for some time for marriage of original complainant with accused. Thereafter on 1.7.2012 i.e. on Sunday the original complainant and accused went from Ahmedabad to Chotila for Darshan and at Limbdi Avantika Hotel room was hired and there the accused tried to molest the Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Mar 15 00:36:15 IST 2017 R/CR.MA/34463/2016 ORDER original complainant and original complainant resisted for the same and thereafter the accused gave threat to the original complainant that if she will not permit for intercourse then accused will not marry original complainant and thereafter the accused intercourse forcefully the original complainant against her wish and thereafter returned to Ahmedabad and not went to Chotila.
5. The further allegations are to the effect that after the socalled incident the original complainant was under fear and was not talking the accused in office and thereafter in presence of office staff the accused told sorry to the original complainant about the alleged so called incident of Limbdi and thereafter again the accused developed intimacy with original complainant and in December, 2012 accused took the original complainant from office to Redwood Resort for high tea and there also the accused intercoursed the original complainant.
6. The further allegations are to the effect that on 22.6.2013 as the original complainant was not well and was on leave Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Mar 15 00:36:15 IST 2017 R/CR.MA/34463/2016 ORDER at that time the accused came to the house of original complainant and took per in car and offered juice to original complainant by pouring tablet in juice and after the original complainant became unconscious and when she came in consciousness she found in room of Redwood Resort and sever pain was on her private part, at that time she realized that she has been raped by the accused by making her unconscious. After returning home, the original complainant told her mother and sister about the incident and also told that she will not marry to accused. On the next date again the accused came to the original complainant's house and told sorry about the socalled incident and also told that in short time accused will marry to original complainant. Thereafter, on 7.9.2013 the accused married to original complainant in Arya Samaj as per rites and rituals.
7. Mr.B.M.Mangukiya, learned advocate appearing with Mr.C.B.Gupta, learned advocate for the applicant has contended that in the Patel community customary divorce is permissible and in result of that custom applicant has taken divorce Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Mar 15 00:36:15 IST 2017 R/CR.MA/34463/2016 ORDER with first wife on 21.7.2013. Thereafter on 7.9.2013 the applicant married to present original complainant. He has compared date of divorce with first wife and date of marriage with original complainant and contended that at the time of second marriage he has already divorced first wife.
8. He has contended that as per provisions of Sections 493 and 494 of the Indian Penal Code only first wife can file complaint against present applicant. He has contended that learned Judge has committed grave error of fact. He has, therefore, contended that the application may kindly be allowed by releasing the applicant on bail pending the appeal.
9. Mr.N.J.Shah, learned APP for the respondent State has vehemently opposed bail application. He has contended that learned Judge has passed detailed order while convicting present applicant and, therefore, no interference is called for. He has read oral version of the original complainant as well as documents produced on record of this case and contended that from the oral version of the wife it is Page 6 of 8 HC-NIC Page 6 of 8 Created On Wed Mar 15 00:36:15 IST 2017 R/CR.MA/34463/2016 ORDER crystal clear that she has been cheated by the present applicant and frequently without her consent intercourse has been made by the applicant. The applicant has committed the offence in question against the moral and society. He has prayed to dismiss the bail application.
10. I have gone through the papers produced before me as well as the judgment and order passed by the learned learned Additional Session Judge, Limbdi, Dist.Surendranagar. I have perused date of divorce deed, date of purchase of stamp paper and marriage date of present applicant with original complainant. The learned Judge has not considered the said issue in his order.
11. Looking to the facts of the case, I am of the opinion that this is a fit case to grant the bail to the applicant without entering into merit of the case. Hence, the applicant is ordered to be released on bail pending hearing and disposal of the main appeal on his furnishing a personal bond of Rs.10,000/ and a surety of the like amount on usual terms and conditions. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(Z.K.SAIYED, J.)
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KKS
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