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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