Nirmalaben Ganeshbhai Parshuram Patil vs State Of Gujarat

Paresh Upadhyay, J

The appellant is convicted by the 3rd Additional Sessions Judge, Surat vide judgment dated 26.05.2017 in Sessions Case No.24 of 2016. By the

impugned judgment, the appellant is convicted under Section 376 read with Section 114 of the Indian Penal Code and under Section 506(2) read with

Section 114 of the Indian Penal Code. For the conviction under Section 376 read with Section 114 of the IPC, the appellant is ordered to undergo

rigorous imprisonment for seven years. Further, for the conviction under Section 506(2) read with Section 114 of the IPC, the appellant is ordered to

undergo rigorous imprisonment for three years. Fine is also imposed and in default thereof, further sentence is also imposed. The Sessions Court has

however not recorded that, the sentence shall run concurrently. That is how the total sentence is for ten years.

The present appellant is a lady accused. She is one of the two accused tried and convicted. She was accused No.2. Accused No.1 is not before

this Court atleast in this appeal.

This Court had, after admission of appeal, suspended the sentence vide order dated 27.09.2019, for the reasons recorded therein, inter alia on the

following condition.

“The applicant shall be released on bail by executing fresh bond of Rs.15,000/- and one surety of the like amount to the satisfaction of Trial Court

on condition that, she shall proceed with the Criminal Appeal as and when it may be listed and she shall surrender her passport, if having, before the

learned Trial Court and shall not leave India without prior permission of this Court.â€​

Even after the above order, the appellant â€" lady could not come out of jail.

Learned advocate for the appellant and learned APP for State have assisted the Court and having heard them it transpires that, condition of

furnishing one surety of Rs.15,000/- appears to be a factor, that even after the sentence was suspended by this Court as back as on 27.09.2019, the

appellant lady could not come out of jail.

In view of above, appropriate modification needs to be ordered by this Court. However there is one factor against the appellant. She has jumped the

temporary bail granted by this Court. The details in that regard are as under.

6.1 In the CORONA first wave, the appellant sent an application through jail for temporary bail on 24.04.2020. It was inter alia prayed that, her

husband aged about 65 years is alone and there is no one to look after him in those days. This Court had, vide order dated 13.05.2020, granted

temporary bail for eight weeks on condition of furnishing a personal bond of Rs.5,000/-.

6.2 Before the above order came to be passed, the lady applicant â€" appellant sent one more application through jail on 28.04.2020 inter alia praying

therein that, inspite of suspension of sentence, she has not been able to come out of jail because of her poverty and she not being in a position to

arrange for one surety of Rs.15,000/-. On the said application, this Court, vide order dated 19.05.2020 granted temporary bail for a period of two

months on her furnishing personal bond of Rs.5,000/-.

6.3 In view of the above order, the applicant â€" appellant was on temporary bail and thereafter she has not returned.

The above factors need to be weighed by this Court, by keeping various other factors in view.

7.1 The factor of the appellant being on run at present, has cropped up because of her poverty. Though the sentence is already suspended by this

Court in the year 2019, only because of her poverty, she did not satisfy the condition of arranging one surety for her and therefore she continued in jail.

This factor needs due sympathy in her favour.

7.2 It also needs to be noted that, the case of the appellant is represented before this Court with the aid of the Gujarat High Court Legal Services

Committee.

7.3 Further, she has already served the sentence of more than four years and six months by this time.

7.4 Further, because of pendency of old appeals, the chances of this appeal being heard in near future being less, is also a factor which has weighed

with this Court. On this count, the orders passed by this Court on :-

(i) Criminal Appeal No.1462 of 2008 dated 15.07.2021;

(ii) Criminal Appeal No.445 of 2014 dated 26.07.2021;

(iii) Criminal Appeal No.164 & 166 of 2017 dated 15.07.2021

and

(iv) Criminal Appeal No.889 of 2017 dated 15.07.2021 are also kept in view.

Keeping all the above factors in view, the following order is passed.

8.1 The condition of suspension of sentence noted by this Court in the order dated 27.09.2019 recorded on Criminal Misc. Application No.1 of 2019 is

modified to the extent that, the appellant shall be released on bail on her furnishing personal bond of Rs.5,000/-. The bond at the time of releasing on

temporary bail shall be treated as due compliance thereof.

8.2 The order dated 27.09.2019 recorded on Criminal Misc. Application No.1 of 2019 is modified to the above extent.

8.3 Registry shall communicate this to the concerned jail, which in present case is indicated to be a Lajpore Jail, Surat.