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1993 DIGILAW 191 (GUJ)

KOLI BHIMA HARI v. STATE

1993-04-22

B.J.SHETHNA, Y.B.BHATT

body1993
SHETHNA, J. ( 1 ) THIS application is filed by the applicants-accused for releasing them on bail during the pendency and final disposal of Criminal appeal No. 1058 of 1992 filed by the State against the judgment and order of acquittal passed by the learned Sessions Judge, Surendranagar, dated 5- 8-1992. On 5-4-1993, while admitting the appeal, this Court issued non-bailable warrants against the present applicants-accused and pursuant to the said order they were taken into custody. Therefore, this application is filed by the applicants-accused fur releasing them on bail. . . . . . . . . . . . . . . . . . ( 2 ) WHILE admitting the appeal we had gone through has the R and P and also the reasons assigned by the learned Judge for convicting the accused. Prima facie we were of the view that the reasons for acquittal are flimsy and they cannot be called as reasons, apart from good reasons, in the eye of law. The same are not at all sustainable in view of the evidence on record of this case, which is clearly against the accused and lead to the only conclusion that the accused are guilty of committing murder of Labhuben. The learned Judge has held that the prosecution failed to prove that it was a homicidal death, though there was overwhelming evidence to the contrary. According to him it was a suicidal death, for which there is no evidence on the record. It is a case of circumstantial evidence; the chain of circumstances is complete and no link is missing. The conduct of the accused is an important circumstance against them. Under these circumstances while admitting the State appeal against the order of acquittal, we had exercised our power and ordered issue of non-bailable warrants. We were also fully conscious that the trial court on appreciation of evidence has acquitted the accused. But, in the case on hand, if we had not exercised our power and not issued non-bailable warrants, we would have failed in our duty. Section 390 of Cr. P. C. is meant to be exercised in such cases, where the trial Court materially erred in acquitting the accused. The increasing rate of bride burning cases are causing great alarm and concern to one and all in society. The learned Judge has completely lost the distinction between mere doubt and reasonable doubt. Section 390 of Cr. P. C. is meant to be exercised in such cases, where the trial Court materially erred in acquitting the accused. The increasing rate of bride burning cases are causing great alarm and concern to one and all in society. The learned Judge has completely lost the distinction between mere doubt and reasonable doubt. Mere doubt in a criminal case would not entitle the accused for acquittal. Perhaps, there may not be any criminal case in which some doubt, at some stage, may not be sought to be raised. It does not mean that if, on some minor point, some doubt arises, then Court must acquit the accused. The doubt should be a reasonable doubt. Only when a reasonable doubt arises in the case, then and only then, the benefit should be given to the accused by the Court. Otherwise not. ( 3 ) WE may make it clear that while issuing non-bailable warrant we had not given any reason, but Mr. Kella, learned Advocate insisted that this court should give reasons. It may be also be stated that Mr. Kella also insisted that this Court should deal with the evidence. But we have refused to do so because any further discussion of the evidence at this stage is likely to prejudice the case of the accused at the time of final hearing of the appeal. We also make it clear that our above observations in this order regarding the order of the learned Judge are prima facie observations. It goes without saying that we have not concluded any issue against the accused. ( 4 ) MR. Kella, learned Advocate, then submitted that even conviction appeals are not finally heard by this Court for 5 to 7 years and the accused, who are acquitted by the trial Court and who may be ultimately acquitted also by this Court, will have to remain in Jail for at least 5 to 7 years for no fault on their part. Therefore, he submitted that in this case, though the accused were acquitted, they will have to remain in Jail for a period of 5 to 7 years and this could not be compensated in any manner, if ultimately after 5 or 7 years, if the appeal against them is dismissed and the acquittal order passed in their favour is confirmed. Therefore, he submitted that in this case, though the accused were acquitted, they will have to remain in Jail for a period of 5 to 7 years and this could not be compensated in any manner, if ultimately after 5 or 7 years, if the appeal against them is dismissed and the acquittal order passed in their favour is confirmed. On relying upon two judgments of the Supreme Court (1) Babusing v. State of U. P. , reported in AIR 1978 SC 527 , and (2) Kashmira Singh v. State of Punjab, reported in AIR 1977 SC 2147 , Mr. Kella submitted that the accused should be released on hail Both these decisions of the Supreme Court with other judgments were considered by the Division Bench of this Court in the case of Dalvadi Sukhabhai v. State of Gujarat, reported in 1989 (2) GLR 1239 and the very submission regarding delay was negatived by this Court. We whole-heartedly agree with the view taken by this Court in dalvadis case (supra ). Mr. Kella submitted that the accused are in Jail pursuant to the non-bailable warrants issued by this Court in an acquittal appeal, though they were acquitted by the Court and, therefore, the judgment of Dalvadis case (supra) will not apply on the facts of this case. We are afraid we cannot agree with this submission made by Mr. Kella. Whether the accused is in Jail due to the conviction order of the trial Court or pursuant to the non-bailable warrant issued is acquittal appeal, makes no difference. The principle laid down in Dalvadis case (supra) will squarely apply in the present case also. Hence this contention of Mr. Kella also fails and is rejected. ( 5 ) LASTLY Mr. Kella submitted that at least the lady accused No. 2 (being a woman) should be released on bail, as she was released on bail under proviso to Sec. 437 (1) Cr. P. C. by the trial Court. It is true that she was released on bail, may be because of her being a woman, by the trial Court. Proviso to Sec. 437 (1) Cr. P. C. provides that women accused and minor accused may be released on bail in non-bailable offences, But in our opinion, the Court should be slow in granting bail to such accused under Sec. 437 or Sec 439 Cr. Proviso to Sec. 437 (1) Cr. P. C. provides that women accused and minor accused may be released on bail in non-bailable offences, But in our opinion, the Court should be slow in granting bail to such accused under Sec. 437 or Sec 439 Cr. P. C. If that order of bail was challenged before this Court, this Court probably would have set aside the order of bail in view of the seriousness of the offence, even though accused No. 2 was a woman. But, that is not the question before us. Therefore, we may not go into that. However, considerations of bail during the trial and after the trial are totally different. Before the trial there will be material in form of the statements of the witnesses and the accused would not have the advantage of the same being tested, in cross-examining them before the Court by a competent Advocate. Therefore, considering the material on the record of the case, on the test of probabilities, with other relevant factors, the Court has to decide question regarding grant of bail. But, during the trial the entire evidence is tested by the rigid cross-examination of the Advocate of the accused. Therefore, on careful consideration of the evidence, either in conviction or acquittal appeal, Court has to come to the conclusion whether bail should be granted or not ? In this case the accused No. 2 though being a woman, is alleged to have brutally killed her daughter-in-law with the help of the accused Nos. 1 and 3, her husband and son respectively, only for some ornaments. The motive, the part played by her in the commission of the offence and her subsequent conduct of falsely informing the relatives of the deceased that the deceased committed suicide, dissentitle her to be released on bail It is rightly said that a woman is the greatest enemy of woman. A mother-in-law is in the place of a mother, and instead of taking care of her daughter-in-law, if she commits such a heinous act, she cannot be released on bail even if she may have been acquitted or she was granted hail during the trial. ( 6 ) IN view of the above discussion, we do not see any merit in this application nor any substance in any of the aforesaid contentions raised by mr. Kella. Accordingly this application is rejected. .