Monday 2 September 2024

Gujarat HC: Factor to be considered by the Appellate court before suspending sentence of convict

 Before adverting to the submissions and to

ascertain, whether the applicant has made out a case

for suspension of sentence, it is necessary to see the

legal position.

(i) Section 389(1) of the Cr.P.C., enjoins upon the

Appellate Court the power to pass an order for the

suspension of sentence or order of conviction during

the pendency of an Appeal. The statutory provision

says that, pending any appeal by convicted persons,

the appellate Court may reasons to be recorded by it

in writing, order that the execution of the sentence or

order appealed against, be suspended and also if he

is in confinement, that he be released on bail or on

his own bond. The Apex Court in Rajesh Ranjan

Yadav Vs. CBI (2007 (1) SCC 70), after referring

its earlier decisions, [Kashmira Singh Vs. State of

Punjab (1977 4 SCC 291) and Bhagirathsing Vs. State

of Gujarat (1984 (1) SCC 284)] in para-10, observed

that, there is no absolute and unconditional rule

about when bail should be granted. The observations

made in para-10 reads as under:

“Para-10: “In our opinion, none of the

aforesaid decisions can be said to have been

laid down any absolute and unconditional rule

about when bail should be granted by the

court and when it should not. It all depends

upon the facts and circumstances of each

case and it cannot be said that, there is any

absolute rule that, because of long period of

imprisonment has expired, bail must

necessarily be granted.”

(ii) In the case of Ash Mohammad Vs.

Shivrajsinh @ Lalla Babu and another, (2012) 9

SCC 446, the Supreme Court in para-30, while

examining the societal interest and considering the

antecedents examined the post conviction bail and

discussed on the issue of desirability to suspend the

sentence and grant of bail. Para-30 reads as under :

“30. We may usefully state that when the

citizens are scared to lead a peaceful life and

this kind of offences usher in an impediment in

establishment orderly society, the duty of the

court becomes more pronounced and the

burden is heavy. There should have been

properly analysis is criminal antecedents.

Needless to say, imposition of condition is

subsequent to the order admitting an accused

to bail. The question should be paused whether

the accused deserves to be enlarged on bail or

nor and only thereafter, imposing conditions

would arise. We do not deny for a moment that

period of custody is relevant factor but

simultaneously the totality of circumstance and

criminal antecedents are also to be weighed.

They are to be weighed in the scale of collective

crime and desire. The societal concerned has to

be kept in view in juxtaposition of individual

liberty. Regard being head to the said

parameter, we are inclined to think that the

social concerned in the case at hand, deserves

to be given priority over-lifting the restriction on

liberty of the accused.”

[emphasis supplied]

(iii) In Sidhartha Vashisht @ Manu Sharma Vs.

State (NCT of Delhi) reported in (2008) 5 SCC 230,

referring the decision of Vijaykumar (2002) 9 SCC 364,

the Supreme Court while examining the prayer of

suspension of sentence emphasized that, in a case of

involved in a serious offence, the court should

consider all relevant factors like the nature of

accusation made against the accused, the manner in

which the crime is alleged to have committed, the

gravity of offence, the desirability of releasing the

accused on bail after he has been convicting for

committing serious offence and also bearing in mind

that, when the accused has been found guilty then,

initial presumption of innocence in his favour is no

more available to the applicant and therefore, the

appellate Court shall not suspend the sentence except

only in an exceptional case and that too, in a case of

existence of reasons to suspend the sentence.

(iv) Recently, Supreme Court while considering the

scope of Section 389(1) of the Cr.P.C. in the case of

Omprakash Sahani Vs. Jayshankar Chaudhary

(2023) 6 SCC 123, after referring the earlier all

decisions on this aspect, observed and held that, while

dealing with the case of suspension of sentence and

grant of bail, the appellate Court before allowing the

prayer, should prima-facie come to a conclusion that,

the conviction may not be sustainable. Para-33 is

relevant to refer and same is reproduced hereunder:

“Para-33: Bearing in mind the aforesaid

principles of law, the endeavour on the part of

the Court, therefore, should be to see as to

whether the case presented by the

prosecution and accepted by the Trial Court

can be said to be a case in which, ultimately

the convict stands for fair chances of

acquittal. If the answer to the above said

question is to be in the affirmative, as a

necessary corollary, we shall have to say that,

if ultimately the convict appears to be entitled

to have an acquittal at the hands of this Court,

he should not be kept behind the bars for a

pretty long time till the conclusion of the

appeal, which usually take very long for

decision and disposal. However, while

undertaking the exercise to ascertain whether

the convict has fair chances of acquittal, what

is to be looked into is something palpable. To

put it in other words, something which is very

apparent or gross on the face of the record, on

the basis of which, the Court can arrive at a

prima facie satisfaction that the conviction

may not be sustainable. The Appellate Court

should not reappreciate the evidence at the

stage of Section 389 of the CrPC and try to

pick up few lacuna or loopholes here or there

in the case of the prosecution. Such would not

be a correct approach.” {Para 16}

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2023.

R/CR.A/607/2023 IA 

 ASHUMAL @ ASHARAM S/O THAUMAL SINDHI (HARPALANI) Vs STATE OF GUJARAT

CORAM: MR. JUSTICE ILESH J. VORA and  MR. JUSTICE VIMAL K. VYAS.

Author:  MR. JUSTICE ILESH J. VORA.

JUDGMENT DATED: 29/08/2024.

1. Rule. Learned APP waives service of Rule on

behalf of respondent State. By consent, Rule is fixed

forthwith.

2. By way of this application under Section 389(1)

of the Code of Criminal Procedure, the applicant –

Accused no.1 – Ashumal @ Asharam Thaumal Sindhi

Harpalani, seeks suspension of sentence awarded to

him by the Sessions Court concerned for the offences

punishable under Sections 376(2)(C), 377, 354, 342,

357, 506(2) of the IPC.

3. The present appeal and the application for

suspension of sentence arise from the judgment dated

31.01.2023 and order of sentence passed in Sessions

Case No. 34 of 2014, whereby, the applicant herein

was convicted and sentenced as under:

Section Imprisonment Fine Default Sentence

376(2)(C) Life 10,000 SI for 1 yr

377 Life 10,000 SI for 1 yr

354 1 yr 1,000 SI for 3 months

342 6 months 500 SI for 3 months

357 1 yr 500 SI for 1 month

506(2) 1 yr 1000 SI for 3 months

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4. We have heard learned Senior Counsel Mr.

Yogesh Lakhani, assisted by Mr. Ashish Dagli, learned

advocate appearing for and on behalf of the applicant

– accused, Mr. Bharat Naik, learned Senior Counsel

assisted by Mr. Ekant Ahuja, learned advocate for the

victim, Mr. R.C. Kodekar, learned Special Public

Prosecutor with Mr. L.B. Dabhi, learned APP for the

respondent State.

5. It appears from the material on record that, the

applicant accused no. 1 along with 6 other co-accused

were put to trial in the court of Additional Sessions

Judge, Gandhinagar in Sessions Case No. 34 of 2014

for the offences punishable, as recorded in para-2 of

this order.

6. At the end of the trial, the accused nos. 2 to 7

namely Bhartiben Asharam – daughter of applicant,

Laxmiben Asharam – wife of Asharam, Nirmalaben

Lalwani @ Dhel, Meeraben @ Baglo Kalwani,

Dhruvben Gurudas and Jaswantiben Chaudhary were

acquitted from all charges, whereas, the applicant

Asharam held guilty by the trial Court.

7. The applicant accused has preferred the

conviction appeal being Criminal Appeal No. 607 of

2023 along with the application for suspension of

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sentence, which is subject matter of adjudication of

this proceeding.

8. Before narrating the case of the prosecution,

background facts of the applicant would necessary to

refer so as to appreciate the rival contentions of the

parties.

 The applicant Ashumal Sirumalani Harplani

known by his devotees as ‘Asharam’ was working on

the path of spirituality and build his first ashram in

1972 in Motera Area of Ahmedabad and gradually he

established the ashrams in major cities of the Gujarat

as well as across the India and having thousands of

followers and devotees. The activities of the ashram

spread over in the other field like Mahila Ashram,

manufacturing of Ayurvedic medicines and other

allied products, printing press, and gurukul and

therefore, he was in limelight because of his religious

discourses and other social activities. In order to

maintain the said activities, so many Sadhakas

and/or Sevikas, joined with the applicant and

activities of the ashram. The core activities of the

ashram is to deliver religious discourses all over India

either by himself or by their Sadhakas, who have

been trained for delivering lecture on the different

field of Hindu religion.

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9. The brief facts of the prosecution are that the

parents of the victim were devotees of the applicant –

Asharam and used to take visit at Surat Ashram. The

victim and her other siblings from the childhood were

often taken by their parents for darshan at the

ashram at Surat. The family of the victim had blind

faith in the applicant and his religious activities. In

these circumstances, the victim rendered her services

as a Sevika and stayed in the ashram, Motera,

Ahmedabad from 1997 to 2007. It is alleged that

during the stay at Motera ashram, she was abused

sexually and illegally confined by the applicant

accused and the accused nos.2 to 7 were aided

principal accused in commission of the alleged sexual

activities. The details from 1996 to 2007 as narrated

in the FIR by the victim which was allegedly

registered on 07.10.2013 with the Chandkheda Police

Station, reads thus:

(a) On the eve of Janmashtami (1996) the family of the

victim had gone to Surat ashram for attending

Satsang and other festivals. She met the applicant and

by touching his feet, she sought blessings from the

applicant. The applicant after seeing her, said that she

having potential to become a great orator (Vakta) and

he will make her a great orator. On the second

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occasion i.e. in the year 1997, there was a Holi Shibir

at Surat Ashram. The victim and his family had

attended the Shibir and met the applicant. The

applicant asked the victim to do rituals (anusthan) for

about 11 days at Mahila Ashram, Motera, Ahmedabad.

Due to faith and immense devotion towards the

applicant, the parents of the victim agreed to send her

at Ahmedabad ashram. On arrival at the ashram, she

was given a Gurumantra ‘Hari Om’ and asked her to

complete 3 lakhs chants of this Mantra in 11 days. She

had completed the chants. After completion of

Anusthan, she sought a permission to leave the

Ashram but the head of the office namely accused

Dhruvben did not allow her to leave the ashram

because, the applicant wants her to become a great

orator. She was introduced to the other accused and

after 15 days, when her parents came to take her to

Surat, the wife of the applicant – Accused no.3

convinced the parents that, for future life of the

victim, her further stay is necessary in the ashram.

The victim herself believed a lucky person and

fortunate enough to stay in the ashram. Thereafter,

she was entrusted the Ayurvedic department for

preparing medicines etc. and had worked for 6

months. During her stay at the ashram at Ahmedabad,

the applicant met her and recollected his memory

saying that ‘you are the same girl belongs to Surat’

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and after 6 months also, when he met to the victim,

he gave a garland of flower. The original accused no. 4

and 5 were close to the applicant and others.

(b) In the year 2001, the accused nos. 4 and 5 being close

confident sevikas of the applicant, met the victim and

conveyed the message of applicant that, in order to

become a orator (vakta), she along with other 10 girls

were taken by the two confidential Sadhakas to the

applicant at his farm house known as ‘Shanti Vatika’,

which is at the distance of 2 to 3 Kms from the main

ashram. At that time, the applicant selected the victim

and one another girl ‘Varsha’ for becoming an orator

and he said to the victim that, there is still exist

materialistic life in you and to remove this worldly

desire of materialistic life, he has to undertake the

rituals (vidhi) for which he will call her.

The incident of sexual abuse and instances of unnatural

sex and rape.

(c) In the year 2001, on the eve of Gurupurnima, there

was religious function held at Ahmedabad Ashram.

The daughter of the applicant Asharam told the victim

that, at about 2 o’clock, she will be taken at the

private farm ‘ Shanti Vatika’ because of call received

from the applicant, The accused no. 2 sent the

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accused Dhruvben to call the victim and one Tina. The

accused no. 2 along with the victim and Tina went the

farm of the applicant in a car. At the farm, the

Sadhak-cook Akhil being a confidential person of the

applicant was present there. He informed the

applicant about the arrival of two girls. The applicant

directed Akhil to leave the place and further directed

the send two girls one after another. Tina was the first

to meet the applicant in the room. After 10 minutes,

she came out from the room and went with accused

Bharti in the same car at the main ashram. The victim

was called by the applicant in his room. The applicant

was sitting on the bad. He asked the victim to do a

massage by cow ghee. She started the head

massage, meanwhile, the applicant molested her by

making ugly gesture with the body of the victim,

which she had resisted, as she did not like it. The

applicant accused Asharam tried to convince her that,

to become a great orator and to remove the worldly

desire from her, such rituals are necessary. The

applicant accused then asked her to remove her

duppta, which she did not obey it. Then, the applicant

forcefully removed it and said that for the divine

upliftment, it is necessary for her to surrender to him.

The victim was scared and begging to him to leave

her but he did not let her go and pull her on the bed

and said that, there is no body to save you and

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thereafter, he pulled the cord of the Salvar and in the

process of removing salvar by the accused applicant,

the victim tried to escape from the other door of the

room and before she could escape, the applicant

grabbed her from behind and taken her on the bed

and forced the victim to perform oral sex and after it,

the applicant accused forcefully, did illicit intercourse

and despite of her resistance, by abusing her sexually

fulfill his lust. Thereafter, the accused asked the

victim to wash her private part because of intercourse

he made, she bleed profusely. She was threatened at

that time, that you should not tell anyone about the

said incident, otherwise he will finish her. The accused

justified his act by saying that he wants to see her as

a greater orator and to become orator, it is necessary

to remove the worldly desire from her and that is why,

he has done this act as a part of rituals. The accused

by using cordless phone called the accused no.2 and

after arrival of accused no.2 at the place, the victim

was allowed to go with the accused no.2. She was left

at Shaligram Society and from that place, she came

back at the main ashram Motera on her bare foot.

(d) After the incident, she suffered a shock and for two

days, she had a fever and did not come out from her

room. The other Sevikas viz. Accused nos.4 and 5

came before the victim and said that there is a

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blessing of the accused on her for whatever you have

received. The victim was offered milk and apple by

the Sevikas and conveyed that she should do practice

to become great orator. After one month of the said

incident, attempt was made by the co-accused to

bring her before the appellant accused but somehow

she managed the things and thereafter, the wife of

the applicant accused scolded her and slapped twice

for not surrendering to the applicant accused. On the

same day, afternoon, she was forcefully taken by the

co-accused before the applicant-accused where the

applicant-accused scolded her for not cooperating

with him and tried to convince her not to share the

earlier incident with anyone. Thereafter, she was

declared qualified as an orator (Vakta) and as per the

ashram program, she had attended and delivered

religious discourses at the different places and when

opportunity arose by the applicant accused, he used

to ask sexual favour but due to fear, awe and

influence, she could not able to tell anybody of the

conduct and attitude of the accused and was fed up

with the such kind of activities and endured all these

till May-2007.

(e) It is further alleged that she became extremely

disgusted with this ashram life and thoughts often

came to her mind to end her life by suicide or she

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should have ran away from the ashram. The victim

contacted one girl Uma Panday and discussed with her

about her plan to run away from the ashram.

Accordingly, in the year of 2007, she left the

Ahmedabad Ashram and came at Surat.

(f) The victim in her FIR had further stated that, in the

year of 2009, she got married to one Tusharbhai

Vaisya and since then, she has been living with him

at Surat. She had specifically stated in the FIR that

the manner in which she was physically abused by

the applicant accused and intimidated by him, that

still does not wash out from her mind. She had further

stated that due to status of the accused, his influence

on the devotees and after knowing the facts about

the subsequent incident in respect of persons who

were spoken against the applicant, she did not have

any courage to disclose the alleged incident to

anyone. However, she gathered courage, when the

applicant arrested by Jodhpur Police in connection

with the complaint filed against him under Section

376, etc. and provisions of POCSO Act. It is further

alleged that since long, she was thinking to file a

complaint of her incident against the applicant, but

she was scared of the applicant accused as the

prestigious persons of the society and the higher rank

police official were devotees of the accused and

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having a reasonable apprehension in her mind that

whether police will register a complaint or not and

was also afraid that if the complaint would not be

registered and if we were exposed, then the applicant

and devotees would not let her live. She had also

explained that if the accused had not been arrested

and he succeeds in getting bail then, she will never

lodge an FIR. It is further clarified in the FIR that the

younger sister of the victim was also sexually abused

by the son of the applicant viz. Narayansai at Surat

Ashram and in the year of 2005, after leaving the

ashram at Surat, she got married and living with her

husband at Surat. It was further explained and

clarified that in the year 2007, she had shared the

alleged incident of rape with younger sister but

thereafter, considering the influence of the applicant

accused, and after such long time, people would not

believe their plight and story, they decided not to

report to the police. However, after arresting the

applicant accused in Jodhpur case, both the sisters

discussed the issue with the family including their

husband, finally, gathered courage to lodge the

complaint. The complaint reported to Surat Police

Official and after registering the offence with

Jhangirpura Police Station and on jurisdictional issue,

the same was transferred to Chandkheda Police

Station, Ahmedabad.

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(g) The Government formed a Special Investigation Team

and accordingly, after arresting the applicant herein,

the police agency found sufficient material against

the applicant and others for the charge and

accordingly, chargesheet came to be filed against 7

accused including the applicant herein for the

offences as recorded above and same was

culminated into Sessions Case No. 34 of 2014. The

learned Additional Sessions Judge, Gandhinagar

framed a charge on 28.03.2016. The trial Court had

proceeded to record the evidence of the witnesses.

The prosecution examined 54 witnesses in support of

the charge and exhibited 110 documents. After

recording the further statement of the accused under

Section 313 of the Cr.P.C., the accused in their

defense examined 13 witnesses and relied on 82

documents. The learned trial Court, after hearing the

parties and upon analysis of the evidence on record,

held guilty the applicant accused herein for the

offence as recorded above and convicted and

sentenced him to suffer life imprisonment. The other

co-accused i.e. accused nos. 2 to 7 due to insufficient

evidence, they have been acquitted from all charges.

(h) The applicant accused no. 1 being dissatisfied with

the judgment and order of conviction and sentence

preferred the Criminal Appeal being 607 of 2023

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along with present application for suspension of

sentence and to grant the bail. The applicant was

behind the bar since from his date of arrest i.e.

14.10.2013.

10. Mr. Yogesh Lakhani, learned Senior Counsel

appearing for and on behalf of the applicant–accused

assailing the judgment of conviction and sentence has

submitted that the judgment of conviction and

sentence is unjust, improper and being rendered by

ignoring settled principle of criminal jurisprudence

and there are patent infirmities, non-application of

mind on the relevant material and taking moral view,

the trial Court has recorded the conviction and

ignored the acceptable and reliable evidence adduced

by the accused and failed to objectively and

dispassionately evaluate the evidence on record

which has led to grave miscarriage of justice as the

entire case of the prosecution appears to be fake,

fabricated, concocted, afterthought and got up and

the victim was instrumental of large conspiracy

hatched by the persons who are against

administration of ashram and applicant and the

learned trial court erred in appreciating the version of

the complainant whose evidence does not inspiring

confidence and she is not a witness of sterling quality

and her evidence is not reliable and truthful and

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without the corroboration to her deposition, the trial

court could not have convicted the applicant in a

serious charge of rape. In the aforesaid context, the

following elaborate submissions being made:

The entire prosecution case is frivolous, concocted

and got up.

(a) The entire prosecution case appears to be fake,

fabricated, concocted and got up and the story put

forth by the victim seems to be improbable and in

any circumstances it cannot be accepted and the

victim is telling lie with oblique motive and she was

instrumental of the larger conspiracy hatched by the

persons who either removed from the ashram

activities or left the ashram to extort money from the

applicant and ashram.

In the aforesaid context, it was stated that, the

first meeting as per prosecution case of the victim

and applicant held in 1996 at Surat ashram and

according to her statement, on the eve of

Janmashtami, she attended the gathering. This

statement is proved to be totally false, as the

gathering of Janmashtami was held at Rajkot. PW-35

Rakesh Patel, PW-45 – Pragnesh Parekh admit that,

the Janmashtami gathering of the year 1996 was

held at Rajkot and sister of the victim DW-1 Gitaben

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as well as the Editor of news paper ‘ Sanj Samachar’

– DW-6, categorically stated that, the Janmashtami

was held at Rajkot. The Investigating Officer – PW-55,

did not have collected the evidence on this aspect.

Thus, therefore, the very foundation of meeting with

the applicant in the year 1996 is not established and

story of giving book and assuring her to become

great orator is also falsify by the evidence of the

prosecution as well as defense witnesses. Thus, the

facts of first meeting with the appellant in the year

1996 at Jhangirpura Ashram, Surat is not established.

 It is the further case of the prosecution that the

second meeting was held in the year 1997, at

Jhangirpura Ashram, where, the victim was asked to

do rituals (anusthan) for 11 days at Motera Ashram,

Ahmedabad. In this aspect, the evidence of the

victim is full of infirmities and there are material

contradictions and omissions found in the evidence

of victim. When the first meeting of the victim was

not established by the prosecution, then, the

question does not arise to recognize the victim by

the applicant in the second meeting and thus, both

the incidents of 1996 and 1997, as projected by the

victim, are not proved and having been falsely stated

with oblique motive.


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(b) The incident of Gurupurnima allegedly held in the

year 2001, is also false and fabricated, because, it is

on record that lakhs of devotees remained present to

offer reverence to the applicant-accused on the day

of Gurupurnima and the gathering was held in the

open area and on that day, behind the stage, the

accommodation was made for the applicant to stay

there and thus, the victim and other lady called at the

‘Shanti Vatika’ after 2 o’clock, which is at the

distance of 3 kms from the ashram, is not believable

as it is humanly impossible to call the victim at

private farm – Shanti Vatika on the said day. The lady

namely Tina, who had accompanied to the victim, has

not examined by the prosecution to establish the

incident as well as presence of the victim at the place

of offence. The statement of Tina, though recorded,

but is not part of the record. The IO PW-55 admitted

that, it was the decision of the SIT not to cite Tina as

a witness and disclose her statement. So far incident

at Shanti Vatika is concerned, in the year of 2001,

one Pragnesh @ Lalabhai had rendered his service as

a cook and thereafter, between 2002 to 2004, one

Rohitbhai had replaced Lalabhai and in the year 2004

onwards, one Akhil Gupta was the cook at the place.

There is sufficient evidence to establish the fact that

when incident occurred, Akhil was not working as a

cook. Akhil was cited as a cook by the victim, with an

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intention to create an evidence and lend support to

the evidence of the victim. Akhil and his wife before

registration of the FIR and after, were in custody of

the ATS Police, Surat and their statements under

Section 164 were taken and most peculiar fact is that,

he was arraigned as accused and later on, he cited as

witness and that too without following proper

procedure. Thus, the witness Akhil was under

compulsion of the police and he was falsely cited as a

cook which shows that the story projected for alleged

sexual assault after a period of 12 years, has no

foundation and same is based on falsehood. The

prosecution witnesses as well as defense witnesses

have categorically stated that, at the time of incident,

Pragnesh @ Lalabhai was working as a cook. The

witnesses have also stated that, the driver as well as

the security person were always accompanied to the

accused round the clock. Akhil Gupta and his wife

gave a statement under Section 164 because they

were under the custody of the police and to save

their further prosecution. Akhil though cited as a

witness, but, before he could examined, he died

pending the proceedings. The wife of Akhil namely

Varsha-PW.51, declared hostile. In such

circumstances, the learned trial court could not have

relied upon the 164 statement of Akhil as the

contents of statement has not been proved. The

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entire sequence of the alleged sexual abuse being

changed by the victim. In the FIR and her 6 further

statements, while narrating the incident, she claimed

that the applicant first committed oral sex on her and

thereafter, committed sexual intercourse with her,

whereas within a day, when statement under Section

164 came to be recorded, the narration of the

incident changed and stated that, the applicant first

committed sexual intercourse with her and then

forced her to do oral sex. Thus, on the material

aspect, there was improvement and material

contradiction in the statement of the victim and

testimony and also with other witnesses who have

been examined. The learned trial court while

evaluating the entire evidence of prosecution case,

did not properly dealt with the issue raised by the

defense and did not consider the omissions,

contradictions and improvements made by the victim

in her testimony. The incident of Modasa Ashram was

also not disclosed in the FIR, however, the said

incident was stated by her in the statement under

Section 164. The I.O. PW.55 failed to investigate on

this aspect as no statement of any girl who were

present there being recorded by the I.O. Thus,

therefore, the entire story put forth by the

prosecution witnesses is wholly incredible and

considering the shoddy investigation and delay of 12

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years in lodging the complaint and in absence of

corroboration in any corner to the deposition of the

victim, it cast doubt upon the authenticity of the

prosecution theory. The learned trial Court despite of

sufficient evidence, in respect of conspiracy hatched

by the prosecution witnesses and others against the

applicant and in order to execute the common object

of the conspiracy, the victim PW-27 and her sister

PW-43, were instrumental in initiation of this

prosecution. The persons, who had hatched the

conspiracy were Jitu Soni, Mahendra Chavda – PW32, Saroj Amrutbhai PW-46, Amrut Prajapati, Raju

Chandak PW-26, Devendra Prajapati PW-48 as, they

were forced to left the ashram by the applicant, as a

result, being aggrieved with the decision, they were

in search of lady who can file a false rape case, so as

to tarnish the image of the applicant and send him

behind the bar for life. The defense witness Exh. 699

– Vikramsinh Rathod, executed a sting operation and

recording was done and produced at Exh. 703, to

establish that, Raju Chandak, Mahendra Chavda and

Amrut Prajapati and others were interested to lodge

false case against the applicant Asharam, with a view

to extort the huge amount. Thus, the victim being

instrumental of this conspiracy, filed a false rape case

against the applicant by creating false story of rape.

The sister of the victim and brother in law admitted in

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their deposition recorded in the case of Narayan

Swami, that before lodgement of the FIR of present

case, they had gone to Indore, where, they met Jitu

Soni and others. Jitu Soni being a press reporter,

against whom so many criminal cases are filed and

pending before the different courts and he had also

executed a sting operation of the victim and her

sister. Thus, considering the totality of the

prosecution case, the learned trial Court, did not have

considered the facts of conspiracy and false case

foisted upon the applicant herein.

(c) Delay in registering the FIR:

 It was submitted that the learned trial Court

committed an error while accepting the explanation

for delay of 12 years in lodging the complaint by the

victim. The learned trial Court did not have assigned

sufficient reasons while condoning the delay and

failed to access the circumstances like, the

conspiracy hatched by the erstwhile Sevikas and

Sadhakas of the ashram, withholding of the material

evidence and considering the inordinate delay, the

possibility of false story implicating the accused

cannot be ruled out. In this context, it was submitted

that, as per the prosecution case, in 2001, the victim

PW-27, was taken to the house of the applicant

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namely Shanti Vatika, where, she was sexually

abused. The victim left the ashram in 2007. The

victim in her deposition admits that, during the stay

at the ashram at Ahmedabad, she used to travel

throughout the country to conduct religious

discourses at different places and twice she had been

at her Surat home for the treatment of her ailment.

Despite of ample opportunity to report the incident to

the police or other authority, she did not do it and sat

silent for about 12 years for which the only

explanation is that, she was under apprehension and

was scared because she was threatened by the

accused. In 2008, on the incident of mysterious death

of two minors, the Government has appointed an

inquiry commission wherein the CBI published a

notice to the general public inviting their attention of

the incident and come forward to depose before the

commission and their names will not be disclosed.

The victim had an opportunity to lodge the complaint

because there was a police protection to her, but she

did not report it because as such there was no any

incident as projected by the prosecution. The

explanation offered are not satisfactory and

convincing because when she left the ashram, she

was not under influence of anybody and on this

aspect, there is no discussion in the judgment and

merely citing Section 478 of the Cr.P.C., the Court

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satisfied with the explanation and relied on the

testimony of the victim as well as witnesses. The

sister of the victim along with the victim and their

respective husbands met Raju Soni at Indore and

thereafter, the complaint came to be filed by her

which shows that, the FIR was filed with due

deliberation and with oblique motive. Thus, therefore,

the learned trial court without considering the

truthfulness of the prosecution case and without

considering the ground reality, accepted and

condoned the delay and rejected the plea of false

implication and vulnerability of the prosecution case.

In the instant case as discussed above, there is a 12

years delay which throw a cloud of suspicion on the

seeds of the prosecution case, because, the presence

of the victim on the scene of offence on the eve of

Gurupurnima, is not established. The lady Tina, who

was with her, has not been cited as a witness nor her

statement was produced with the chargesheet. The

I.O. PW-55 admitted that, not citing Tina as a witness

was the decision of the SIT. The presence of witness

Akhil was also not established because, as per

prosecution witnesses, the official cook of the

applicant was Pragnesh @ Lala and the entry of Akhil

as a ‘cook’ was after 2004. The driver of the car as

well as of the applicant and security persons, were

not examined. In addition to that, after the incident,

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when victim was taken from the place of incident, she

was left at Shaligram society. She had an opportunity

to run away or did not raise the alarm nor tried to

escape from the place and kept silence for 12 years

which creates doubt about the veracity of the

prosecution case and cast a serious doubt on the

investigation and discredit the truthfulness of the

prosecution version.

(d) The evidence of victim is not wholly reliable and she

cannot be held to be a sterling quality of witness.

It was submitted that, the victim PW.27 and her

younger sister PW.43 were the party to the

conspiracy hatched by the witnesses and despite of

no such incident ever happened, she was telling lie

and her conduct seems to be unnatural. The trial

court committed a serious error in relying upon the

sole testimony of the victim and convicted the

applicant for the charge of rape. It was further

submitted that, the evidence of prosecutrix is to be

construed to be that of an injured witness so much so

that no corroboration is necessary unless and until it

is proved that her evidence is found to be absolutely

true, trustworthy, reliable and inspiring confidence.

In the facts of present case, the incident of first

meeting of 1996 found to be false and thereafter,

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also the another incident of meeting on holy shibir

being tried to be projected that she was invited at

Ahmedabad for 11 days anusthan. The prosecutrixvictim is not certain and confused about the timeline

of the incident because she made improvement in

her deposition in respect of offence of rape allegedly

committed upon her on the eve of Gurupurnima. She

also made material change on the sequence of rape

and act of unnatural offence. There is a major

contradiction in the FIR and 164 statement on the

sequence of alleged act of rape and unnatural

offence and despite of her version made in the FIR,

she stuck to the contents of 164 statement of the

aspect. The theory of rape on the eve of

Gurupurnima prudently not believable because

according to her statement, on that day, lakhs of

devotees visited the ashram. The important witness

one Tina who accompanied the victim and she was

throughout with her before the rape was committed

but somehow, she has not been cited as a witness,

nor her statement provided to the defence and the

I.O. admitted the said facts and further explained

that, not to cite Tina was the decision of the SIT. It is

also an admitted fact that the applicant always

accompanied by driver, security person and when he

at his farm Shantivatika, the cook always remained

present. In the facts of present case, one Pragnesh @

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Lala was in service as a cook at the time of incident

and after 2004, Akhil Gupta replaced one Rohit. Thus,

to lend support to the testimony of the victim about

her presence and incident of rape, the prosecution

despite having sufficient evidence, withheld it and

did not examine them which creates a doubt on the

story projected by the victim. The victim stayed at

the ashram up to 2007 and before the incident, she

already started to deliver religious discourses and

she also admits the said fact by citing the incident of

earthquake of January-2001. Thus, the theory

projected that the accused under the guise of giving

opportunity to the victim to deliver the religious

discourse, lured her and abused sexually, cannot

believable because before the incident, she already

entered into field of delivering religious discourses.

The learned trial court while evaluating the evidence

of the victim, did not consider the aforesaid aspect

which touches the reliability and veracity of the

statement of the victim. After the incident and filing

of the chargesheet, the victim applied before the

Court at Gandhinagar, and made a request to record

her statement under Section 164 which request was

rejected. Against the order, she filed a writ petition

before this Court. In the said petition, she has stated

on oath that no such incident was happened. The

copy of the affidavit and petition is placed on record,

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but, somehow the trial court has ignored it. Thus, the

conduct of the victim seems to be unnatural and her

version is not consistent from the beginning and is

not accord with acceptable human behaviours

allowing variations, then, her testimony become

questionable and is not worthy of credence. There is

ample evidence on record that, the victim and her

sister had motive to falsely involve the accused

because she was part of the conspiracy hatched by

the witnesses. Thus, it is difficult to accept the

version of the victim on its face value and that is the

matter, then the Court should search for evidence

direct or circumstantial which lend assurance to her

testimony and considering the peculiar facts of the

case, there are compelling reasons which

necessitates looking for corroboration for her

statement because her statement is not reliable and

there is no ring of truth on the version of the

prosecution case. In these circumstances,

considering the material contradictions and

inconsistencies in the evidence of victim and

witnesses, the conviction based on the sole

testimony of the victim is not sustainable.

(e) Conduct and intention of the investigating agency to

create a false evidence to implicate the accused in

the false case:


It was submitted that the trial court despite of

several admissions and instances of bias and shoddy

investigation, did not assign proper reasons on this

aspect. Before the registration of FIR, the victim and

her sister went to Jhangirpura Police Station where

they submitted a complaint, but somehow the facts of

said complaint had been suppressed and the I.O. –

P.W.55 failed to explain about non-production of the

said complaint. The star witness Tina intentionally not

cited as a witness because she does not support the

case of prosecution. There is no investigation on the

foundation facts with respect to Janmashtami

celebration whether it was held at Rajkot or Surat.

The persons who were associated with the applicant

and somehow they left the ashram have played a

major role in filing the false complaint of rape. The

facts of sting operations were suppressed and not

properly investigated. The mobile data of the victim

and her sister as well as their respective husbands

have not been collected. The witness Akhil Gupta who

died later on, was detained with his family at ATS

Surat Office for about 6 to 7 days and during his

confinement, the statements under Section 164 were

recorded and initially he was arraigned as accused

and later on, when he supported the case, he along

with his wife, cited as witnesses for which the police


agency did not follow the procedure prescribed which

shows that, under the influence, the evidence was

created against the applicant. It is on record that,

with the aid of police, the husband of the victim got a

job and house on rent. During the investigation, the

witnesses were forced to give false evidence against

the accused. The delay in lodging the FIR for about 12

years was also not properly investigated by the

police. So far as incident of sexual abuse disclosed by

the witnesses and the incident of Modasa relating to

the abuse of the victim, the police did not record the

statement of material witnesses to establish the

factum of the incident. Thus, therefore, it is highly

essential that an impartial and full investigation is

made in case of grave offences because the power of

investigating agency is large and expansive and there

are inbuilt provisions in the procedural code to ensure

that the investigation of criminal case is conducted

keeping in mind the rights of the accused to a fair

process of investigation. In the instant case, the

investigation being made from the point view of the

complainant and in an unfair manner which has

violated the fundamental rights of the accused

guaranteed under Article 21 of the Constitution of

India of the right of fair trial.


In view of aforesaid submissions made

hereinabove, the learned senior counsel has

submitted that, the learned trial court failed to

appreciate the material evidence adduced by the

prosecution as well as the defence and on the basis

of surmises and conjectures, convicted the applicantaccused and same is not sustainable in law; since

2013, the applicant-accused is in jail and entire case

put up by the prosecution is doubtful on the reasons

advanced hereinabove and there are fair chances of

the appeal being allowed. The appeal is filed in the

year 2023 and same is not likely to be heard and

disposed of in a reasonable time and therefore, if the

applicant is ultimately found to be innocent, then

who will compensate the precious years of his life

which he has spent in the jail. The applicant is

presently in the Jodhpur Jail because of his conviction

rendered by the Sessions Court, Jodhpur in a case

filed by minor for allegedly abusing her sexually. The

appeal against the conviction of the Jodhpur Court is

pending before the High Court at Jodhpur, Rajasthan.

The applicant aged about 85 years is suffering from

heart ailment and was advised to undergo Coronary

Artery Bypass Grafting by the Jodhpur AIMS Hospital

and there is a risk involved in invasive surgery

because of internal bleeding in the intestine and

stomach, as a result, he could not underwent the

surgery and thereafter, upon inquiry, it came to

notice that, Madhavbag Multidisciplinary Cardiac

Clinic, Khopoli, Maharashtra treats the patient with

heart ailment without any surgical intervention for

which Rajasthan High Court recently vide its order

dated 13.08.2024, granted emergency parole of 7

days at the risk and cost of the applicant. In these

circumstances, it was submitted by learned senior

counsel that considering the peculiar facts and

circumstances of present case, case is made out to

extent the benefit of suspension of sentence and

grant of bail.

11. In support of the aforesaid submission, the

learned senior counsel relied on judgments of this

Court as well as Apex Court to contend that, the sole

testimony of the evidence of the victim if it is not

inspiring confidence, the conviction without

corroboration to the testimony of the victim, cannot

be sustainable in law. In our opinion, most of the

citations relied are related to the appreciation of

evidence which can be useful at the time of final

disposal of the appeal, because at present we are

dealing with the issue of suspension of sentence.

However, heavy reliance is being placed by the

defence on the recent judgments rendered in the case

of Omprakash Sahani vs. Jaishankar Chaudhari

(2023 6 SCC 123) to contend that, when the

conviction is based on erroneous interpretation of

evidence and there is a fair chances of acquittal, then

accused should not kept behind the bar for a pretty

long time and his case may be considered.

12. On the other hand, learned Special Public

Prosecutor Mr. R.C. Kodekar vehemently opposed the

contentions and contended that, the learned trial

Court while convicting the applicant, has analyzed the

entire evidence adduced by the prosecution and

assigned sound reasons for the conclusion arrived at

for the guilt of the applicant and therefore, the

prosecution has successfully proved the charge

against the applicant accused. The learned trial Court,

after close scrutiny of the testimony of the victim PW27 held that, the victim has gave vivid account of

entire episodes and truthfully narrated the entire

incident and there is no motive to falsely implicate

the accused and therefore, once the court is satisfied

that solitary evidence of the victim is inspired

confidence, appears to be absolutely trustworthy and

sterling quality, there is no need for further

corroboration to lend support to the evidence of the

victim. On the aspect of false and fabricated case of

the prosecution, he would urge that, the evidence of

the victim and her conduct is natural. The learned

trial Court has rightly disbelieved the press report on

the aspect of program of Janmashtami and other

factors, which do not affect the root of the

prosecution. The evidence of the victim, so far main

incident is concerned, despite of searching crossexamination by the defense, nothing could be brought

on record to sake her version regarding the incident

and her evidence is corroborated fully by her

complaint and statement under Section 164 as well as

evidence of her sister PW-43. On the contention of

delay in lodging the FIR, it was submitted that, no

period of limitation is provided in the statute for the

offence punishable for more than 3 years and delay

may not itself be a ground to discard the entire

prosecution case because, the general rule of criminal

justice is that ‘crime never dies’ and in a serious

offences, the case cannot be thrown on board solely

on the ground of delay and in the instant case, the

learned trial Court, after examining the explanation

offered by the victim, satisfied with the explanation,

because, the victim was under fear of present

applicant as being a so called religious spiritual

preacher, his social status was so high and

considering a large of devotees across the India, the

victim was under fear and apprehension about her life

and family, as she had closely seen the applicant and

how he has dare to eliminate the person, who vocal

against him. Thus, the victim was right in her

explanation that, after rejecting the bail of the

applicant Asharam by the High Court as well as

Supreme Court, she gathered courage to lodge an FIR,

otherwise, it is difficult for her to live without

protection and same has been digested and

convinced by the Court. So far as, contention with

regard to victim being a larger conspiracy hatched by

the persons concerned, it was submitted that, the

dispute of rival fraction has nothing to do with the act

of rape committed by the accused upon the victim

and therefore, learned trial court has rightly deal with

the issue.

13. In view of the aforesaid submissions, made

hereinabove, Mr. Kodekar, learned Special Public

Prosecutor would urge that, the sentence of the

applicant ought not to be suspended merely on the

ground that, Appeal will not likely to be heard in a

reasonable time. So far as, health issue, as raised by

the applicant is concerned, it was submitted that, the

applicant accused refused to take proper treatment

from the AIMS, Jodhpur hospital. Thus, therefore,

where the proper treatment administered to him by

the concerned hospital and the medical ground, which

has not been pleaded in the application and

developed later on, cannot be relevant factor to

suspend the sentence. The applicant failed to get the

prayer of suspension of sentence from Jodhpur High

Court, Rajasthan, wherein, the medical ground raised

herein has not been accepted, in view of proper

treatment administered by the AIMS hospital and

refusal of the applicant, to get the treatment with

police escorts on his own costs. In these

circumstances, it was submitted that, the grounds

raised by the applicant – accused assailing the

judgment and order of conviction, cannot be

examined at this stage, because, the reappreciation

of evidence while deciding the application of

suspension of sentence is not permissible in law; the

offence proved against the applicant is serious one,

and it is directly affected to the society at large; since

2013 to 2023, the persons who were witness to the

present case or case filed against Narayan Sai – son

of applicant, either they have been seriously

assaulted or killed. In these circumstances, it is

submitted that, the granting the benefit of suspension

of sentence, would further create the law and order

situation and also, against the societal interest at

large and therefore, no any exceptional ground is

made out to grant the benefit of suspension of

sentence as prayed.


14. Mr. Bharat Naik, learned Senior Counsel assisted

by Mr. Ekant Ahuja, learned advocate, who has been

appointed by the Court for able assistance in the

matter, has submitted that, the issue whatever is

raised hereinabove, in support of suspension of

sentence is a question of reappreciation of evidence

and same can be considered at the stage of final

hearing. In the instant case, the learned trial Court,

after appreciation of the evidence, believed the

version of the victim, satisfied with the delay and case

of the prosecution, and therefore, at this stage, no

ground exist to take a different view, whatever taken

by the trial Court and therefore, he urged that,

considering the status of the applicant and his large

number of devotees and the past incidents of causing

injuries to the witnesses and killing some of them,

would suggestive of the fact that, it is not desirable

for the society at large to extend the benefit as

claimed. In support of his contention, he placed

reliance on the decision of Omprakash Sahani Vs.

Jayshankar Chaudhary (supra) to contend that, there

is nothing on record on the basis of which, this Court

can arrive at the prima-facie satisfaction that the

conviction may not be sustainable and by undertaking

reappreciation of evidence, court cannot take a

different view.


15. We have heard at length the learned counsels

appearing for the respective parties and perused the

case records.

16. Before adverting to the submissions and to

ascertain, whether the applicant has made out a case

for suspension of sentence, it is necessary to see the

legal position.

(i) Section 389(1) of the Cr.P.C., enjoins upon the

Appellate Court the power to pass an order for the

suspension of sentence or order of conviction during

the pendency of an Appeal. The statutory provision

says that, pending any appeal by convicted persons,

the appellate Court may reasons to be recorded by it

in writing, order that the execution of the sentence or

order appealed against, be suspended and also if he

is in confinement, that he be released on bail or on

his own bond. The Apex Court in Rajesh Ranjan

Yadav Vs. CBI (2007 (1) SCC 70), after referring

its earlier decisions, [Kashmira Singh Vs. State of

Punjab (1977 4 SCC 291) and Bhagirathsing Vs. State

of Gujarat (1984 (1) SCC 284)] in para-10, observed

that, there is no absolute and unconditional rule

about when bail should be granted. The observations

made in para-10 reads as under:


“Para-10: “In our opinion, none of the

aforesaid decisions can be said to have been

laid down any absolute and unconditional rule

about when bail should be granted by the

court and when it should not. It all depends

upon the facts and circumstances of each

case and it cannot be said that, there is any

absolute rule that, because of long period of

imprisonment has expired, bail must

necessarily be granted.”

(ii) In the case of Ash Mohammad Vs.

Shivrajsinh @ Lalla Babu and another, (2012) 9

SCC 446, the Supreme Court in para-30, while

examining the societal interest and considering the

antecedents examined the post conviction bail and

discussed on the issue of desirability to suspend the

sentence and grant of bail. Para-30 reads as under :

“30. We may usefully state that when the

citizens are scared to lead a peaceful life and

this kind of offences usher in an impediment in

establishment orderly society, the duty of the

court becomes more pronounced and the

burden is heavy. There should have been

properly analysis is criminal antecedents.

Needless to say, imposition of condition is

subsequent to the order admitting an accused

to bail. The question should be paused whether

the accused deserves to be enlarged on bail or

nor and only thereafter, imposing conditions

would arise. We do not deny for a moment that

period of custody is relevant factor but

simultaneously the totality of circumstance and

criminal antecedents are also to be weighed.

They are to be weighed in the scale of collective

crime and desire. The societal concerned has to

be kept in view in juxtaposition of individual

liberty. Regard being head to the said

parameter, we are inclined to think that the

social concerned in the case at hand, deserves

to be given priority over-lifting the restriction on

liberty of the accused.”

[emphasis supplied]

(iii) In Sidhartha Vashisht @ Manu Sharma Vs.

State (NCT of Delhi) reported in (2008) 5 SCC 230,

referring the decision of Vijaykumar (2002) 9 SCC 364,

the Supreme Court while examining the prayer of

suspension of sentence emphasized that, in a case of

involved in a serious offence, the court should

consider all relevant factors like the nature of

accusation made against the accused, the manner in

which the crime is alleged to have committed, the

gravity of offence, the desirability of releasing the

accused on bail after he has been convicting for

committing serious offence and also bearing in mind

that, when the accused has been found guilty then,

initial presumption of innocence in his favour is no

more available to the applicant and therefore, the

appellate Court shall not suspend the sentence except

only in an exceptional case and that too, in a case of

existence of reasons to suspend the sentence.

(iv) Recently, Supreme Court while considering the

scope of Section 389(1) of the Cr.P.C. in the case of

Omprakash Sahani Vs. Jayshankar Chaudhary

(2023) 6 SCC 123, after referring the earlier all

decisions on this aspect, observed and held that, while

dealing with the case of suspension of sentence and

grant of bail, the appellate Court before allowing the

prayer, should prima-facie come to a conclusion that,

the conviction may not be sustainable. Para-33 is

relevant to refer and same is reproduced hereunder:

“Para-33: Bearing in mind the aforesaid

principles of law, the endeavour on the part of

the Court, therefore, should be to see as to

whether the case presented by the

prosecution and accepted by the Trial Court

can be said to be a case in which, ultimately

the convict stands for fair chances of

acquittal. If the answer to the above said

question is to be in the affirmative, as a

necessary corollary, we shall have to say that,

if ultimately the convict appears to be entitled

to have an acquittal at the hands of this Court,

he should not be kept behind the bars for a

pretty long time till the conclusion of the

appeal, which usually take very long for

decision and disposal. However, while

undertaking the exercise to ascertain whether

the convict has fair chances of acquittal, what

is to be looked into is something palpable. To

put it in other words, something which is very

apparent or gross on the face of the record, on

the basis of which, the Court can arrive at a

prima facie satisfaction that the conviction

may not be sustainable. The Appellate Court

should not reappreciate the evidence at the

stage of Section 389 of the CrPC and try to

pick up few lacuna or loopholes here or there

in the case of the prosecution. Such would not

be a correct approach.”

17. The applicant original accused no. 1 has

challenged the legality of his conviction rendered by

the Sessions Court, Gandhinagar, who held the

applicant guilty and sentenced for life. The FIR

allegedly registered first on 06.10.2013 and was

transferred to the Chandkheda Police Station,

Ahmedabad and same was registered on 07.10.2013.

Prosecution mainly relied on the testimony of the

victim PW-27 and other oral as well as documentary

evidence. We have carefully gone through the entire

case records and the judgment impugned. Learned

trial Court, in his judgment made six compartments

and discussed at length each subject. In para-30, the

learned trial Court discussed the oral evidence as per

their subject mainly evidence of panch witnesses, the

deposition of Videographer, medical evidence, the

oral evidence of the witnesses including the victim

and expert evidence along with evidence of police

officials. Learned trial Court after analysis of the

evidence adduced by the prosecution, closely

examined the testimony of the victim in his judgment.

Para-116 of the judgment speaks about the discussion

and why the court is relying on the sole evidence of

the victim and assigned proper reasons of the

reliability of the evidence of the victim and does not

find any infirmities, lacuna in her evidence. The

learned trial Court on the issue of delay in lodging the

FIR, fully satisfied with the explanation offered by the

victim and considering the status of the applicant and

fear atmosphere created by his devotees and


assessing the circumstances under which the delay

occurred, held that, the delay is satisfactorily

explained and it cannot counted against the

prosecution case and rejected the plea of false

implication and vulnerability of the prosecution case.

In order to examine truthfulness of the prosecution

story and reliability of the evidence of the victim, the

learned trial Court has examined the background

facts of the ashram and its activities and assessed the

character of the applicant by examining the evidence

of the witnesses namely PW-43 Parul Thakkar, PW-46

Saroj Amrutbhai, PW-48 Devendra Prajapati, PW-51

Akhil Gupta, PW-28 Tushar Vaishya, PW-25 Arvind

Patel, PW-24 Gopi Patel, PW-23 Jignesh Patel, PW-26

Raju Chandak, POW-32 Mahendra Chavla, PW-34

Vimlesh Thakkar, PW-35 Rakesh Patel, PW-49 Tushar

Dixit. The said witnesses were associated with the

ashram activities and applicant. They have throw light

on the pervert mind of the applicant and the activities

undertaken on this aspect through his close aids. The

defense witnesses examined have denied the

allegations made against the applicant and tried to

establish that, the prosecution is nothing but a larger

conspiracy hatched by the witnesses and the victim

and no such incident ever happened, as said by

victim. However, fact remains that, daughter in law of

the applicant PW-33 Janki Harplani, who is wife of

Narayan Sai had throw some light on the character of

her father in law – present applicant and her husband

Narayan Sai and she was firmed that the girls were

used to take to the applicant through his close aid and

under the pretext of rituals, they were abused

sexually. The witness Saroj Amrutbhai Ex. 46, has also

thrown light on the character of applicant, as in the

year 2000, when she met the applicant at Revadi,

Delhi ashram, she was sexually abused by him. She

has also stated that her husband who had protested

and vocal against Asharam, he has been killed in his

clinic at Rajkot. In view of the aforesaid, the learned

trial Court came to conclusion that, there was a

reason for the victim for not filing a prompt FIR and

the explanation offered by her is convincing and

truthful and her evidence is truthful and reliable and

there is no any compelling reasons, which necessitate

looking for corroboration of her statement and there

is no difficulty on relying on her statement to convict

the applicant.


18. We have cursorily scanned the evidence

adduced before the trial Court and have perused the

impugned judgment. We do not find at this stage any

patent infirmity in the order of conviction and it

cannot be said that the order prima-facie on face of it

erroneous and something palpable wrong. In a matter

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of conviction appeal, there always be some arguable

points but that by itself cannot be a ground to held

that the conviction may not be sustainable at the

stage of deciding the prayer of suspension of

sentence. We are of the firm opinion that, the grounds

as raised, challenging the order of conviction, more

particularly, false case being registered against the

applicant, the delay in lodging the FIR and inter-se

rivalry of the devotees and other grounds like

conspiracy etc., required to be considered at the time

of final hearing of the Appeal and at this stage, we are

not agree with the contentions urged by learned

counsel appearing for and on behalf of the applicant,

because, ultimately, at the time of final hearing, the

evidence has to be evaluated and weighed and at this

stage, if we discuss and/or dealt with the all the

grounds, it may cause prejudice either of the parties

and therefore, considering the peculiar facts and

circumstances of the present case, we confine

ourselves not to discuss and examine the grounds on

merits.

19. The contention about possible delay and

disposal of appeal and age of the applicant and his

medical condition in the facts of the present case, we

do not found it relevant or material to grant relief of

suspension of sentence. The reasons are as follows:

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(i) The applicant presently in the Jodhpur jail, as he

has been convicted and sentenced for act of rape and

sexual abuse of minor. His appeal against the

conviction is pending before the Jodhpur High Court.

The fourth successive application of suspension arised

from the conviction rendered by the Jodhpur Court,

was rejected in the month of January, 2024, in the said

application, the age factor as well as medical grounds

were being raised but considering the refusal on the

part of the applicant, not to participate in the

treatment advised by the AIMS Hospital, Jodhpur and

despite of consent on the part of the State to

administered the medical treatment at Madhavbaug

Hospital, Maharashtra, the applicant by way of

affidavit, disclosed his intention not to undergo

treatment with Madhavbaug hospital and insisted, to

undergo treatment on his own. The Bench of Jodhpur

High Court while rejecting the application, also

observed that, if the applicant is permitted to take

treatment on his own, then, there will be an issue of

law and order. In these circumstances, we are of the

firm view that, the medical issue whatever has been

taken care of by the jail authority, Jodhpur and

recently, on this ground, he has been granted parole

by the Jodhpur High Court.


(ii) The ashram activities is still going on at different

places all over India and huge number of devotees,

who have deep faith towards the applicant are still

associated with him. In that view of the matter, the

following past antecedents were required to be

referred :-

(a) in July, 2008, it was turning point for the

ashram, because, in the month of July, 2 boys

went missing from the ashram’s Gurukul,

Motera, Ahmedabad and their bodies were

found on the banks of Sabarmati River, near

Ashram and there was an allegation that they

had been scarified by ashram through black

magic.

(b) In August, 2013, a 16 year old girl, who

was staying at applicant’s ashram in Mannai

village, Jodhpur, accused the applicant of

sexually assaulting her on the night of

15.08.2013. The girl’s parents, who are disciple

of ashram had filed the complaint. On

25.04.2018, the Jodhpur Court found the

applicant guilty of rape and pronounced a

verdict of life imprisonment along with his two

associates, who have been sentenced to 20

years imprisonment.

(c) Meanwhile, the present prosecution was

launched by the victim and finally, the applicant

was found guilty. Interestingly, the son of the

applicant – Narayan Sai was arrested on the

charge of rape, following the FIR filed by the

victim, who is younger sister of present victim

as she was sexually assaulted and abused

during 2002 to 2005 at Surat ashram. In April,

2023, Narayan Sai was convicted by the Surat

Court and sentenced to life.

(d) In the aforesaid background facts, during

2014-2015, there had been so many attacks

against various witnesses and relatives of

victims. The husband of Surat victim was

seriously injured but somehow he could survive.

The person who were associated with the

ashram namely Rakesh Patel, was threatened

and assaulted and one Bhagchandani, was also

assaulted by unknown persons. One Mr. Amrit

Prajapati, an Ayurvedic Doctor, who had worked

with the ashram for 15 years, who had opposed

the activities, and key witness of the present

case, was killed in his clinic on 23.05.2014. The

key witness Akhil Gupta, as per prosecution

case, was cook of the applicant, was short dead

in January, 2015 and one Mahendra Chavla, the

witness of present case, was short by two

attackers on 13.05.2015 at his village Hariyana

Panipat and had suffered permanent disability.

(iii) The aforesaid instances clearly show that, after

the prosecution lodged against the applicant in

Gandhinagar, Gujarat as well as Jodhpur, Rajasthan

and the prosecution against his son at Surat, Gujarat,

would be the major grounds for occurrence of the

aforesaid incident, which has direct bearing on the

safety, peace of the witnesses including victim and

her family and society at large. We may clarify that, it

is not our intention to create an impression that the

applicant and the ashram was responsible for the

aforesaid incident. However, fact remains that the

incidents were happened and two witnesses have lost

their lives and some of them, as discussed above,

suffered serious injuries. Thus, therefore, at this stage,

considering the totality of the circumstances, the

ground of possible delay in appeal and medical

ailment, as well as 10 years completion in jail, in our

view, may not be relevant in considering the prayer of

suspension of bail. In such situation, the observations

made by the Apex Court in case of Ash Mohammad

(supra), is relevant to refer. It was observed that in

such situation, it is duty of the Court to properly

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analyses the antecedents of the accused and it should

be weighed in scale of collective cry and desire of the

society, as the societal concerned has to be kept in

view in juxtaposition of individual liberty and societal

concern deserve to be given priority over lifting the

restrictions over the liberty of the accused. Thus,

therefore, we do not find any exceptional ground to

extend the benefit as prayed by the applicant –

accused and for the reasons recorded above, no case

is made out for suspending the substantial sentence

and grant of bail.

20. In the result, we find no merit in the application

and accordingly, it stands rejected. The observations

made by us are purely prima-facie in nature and confine it

for the adjudication of the issue raised herein. Rule is

discharged.

(ILESH J. VORA,J)

(VIMAL K. VYAS, J)

P.S. JOSHI


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