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2009 DIGILAW 280 (GUJ)

SAJAL SURESHKUMAR JAIN v. STATE OF GUJARAT

2009-04-20

JAYANT PATEL, RAJESH H.SHUKLA

body2009
ORDER (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As in all the applications for bail pending the appeals, common questions arise for consideration as the appeals are also arising from the common judgement and order of the learned Sessions Judge, they are being considered simultaneously by the present common order. 2. Rule. Mr.Mengdey, learned APP and Mr.Dipen Desai, learned APP waive service of notice of Rule in all the concerned matters. 3. The applicant of Criminal Misc. Application No.12893 of 2008 is accused No.4 (for the sake of convenience, he shall be described as A-4 hereinafter); the applicant of Criminal Misc. Application No.12897 of 2008 is accused No.1 (for the sake of convenience, he shall be described as A-1 hereinafter); the applicant of Criminal Misc. Application No.13041 of 2008 is accused No.2 (for the sake of convenience, he shall be described as A-2 hereinafter); the applicant of Criminal Misc. Application No.13039 of 2008 is accused No.3 (for the sake of convenience, he shall be described as A-3 hereinafter); and the applicant of Criminal Misc. Application No.13176 of 2008 is accused No.12 (for the sake of convenience, he shall be described as A-12 hereinafter) have preferred the present applications under Section 389 of Cr.P.C. for suspension of sentence and for releasing the applicants on bail pending the appeals. 4. It may be recorded that as per the prosecution case, the complaint (Ex. 283) was registered by the deceased victim, whose English translation from Gujarati language is as under:- My name is (the deceased victim) d/o. Bipinbhai Ambalal Joshi, aged 24 years, occupation service, resident of 10, Indrabaug Society, Behind Panchsheel Bus Stand, Near Ramesh Park, Naranpura, Ahmedabad, mobile number 8616661. Having remained present personally I declare by this complaint, being recorded that I reside along with my parents, brother and sister. I am working at the office known as 'Job Solution' situated at Devpath Office, C.G. Road, Ahmedabad. Yesterday, at about 10:00 p.m. of 31.12.2003 while I was at my residence, a phone call came from my friend residing at Shahibaug area namely Chandan Pannalal Jaiswal (A-3) who told that his party is ready and I should immediately reach to Ashok Palace (the place of incident). Yesterday, at about 10:00 p.m. of 31.12.2003 while I was at my residence, a phone call came from my friend residing at Shahibaug area namely Chandan Pannalal Jaiswal (A-3) who told that his party is ready and I should immediately reach to Ashok Palace (the place of incident). Since my elder sister Vaishali was present at the residence, she dropped me at under-bridge on her two wheeler Kinetic from where I rang up Sajal Jain (A-4) residing at Delhi, came from Delhi and told him that I was standing near under-bridge and that he should pick me up. Because of this, within some time a friend of Sajal named Monty whose original name is Sugam Harishnkar Jaiswal (A-1) residing at Kirannagar Society, Dudheshwar known to me by name, came in his Maruti Zen at under-bridge. I sat in his Maruti Zen car who carried me in his car bearing registration no.GJ-1-HB-1267 from under-bridge to Hotel Ashok Palace. At Ashok Palace friend of mine Sajal Jain (A-4) and Chandan Pannalal Jaiswal (A-3) and one Montu (A-12) who too was friend of Sajal and residing at Delhi and Chandan's brother Mandan Jaiswal (A-2) were present. Chandan told me that his friend would come soon carrying the passes. Sajal Jain and the above named friends sat in room No.106 of Ashok Palace where Sajal ordered for beer. When beer was brought, I was told by Sajal to consume a little beer. I declined to that and Sajal then asked me what is the objection as we are to go to party where so many girls would come who also might have consumed. By saying so and upon persuasion, I consumed one peg of beer. Thereafter, since I declined to consume more beer, Sajal gave me 2.3 slaps and on pressurizing me I was made to take 2-3 more pegs of beer. At this time, Sajal and his friend Montu remained present in the room and others went down. Sajal told me to remove my clothes. I declined and said that I would like to talk to my sister Vaishali. In response to which, Sajal had beaten me by slapping me and Montu went out. At this time, Sajal and his friend Montu remained present in the room and others went down. Sajal told me to remove my clothes. I declined and said that I would like to talk to my sister Vaishali. In response to which, Sajal had beaten me by slapping me and Montu went out. Sajal slapped me and forcefully removed the clothes worn by me and had intercoursed with me by force and after intercoursing me, Sajal had telephoned Chandan, hence, Chandan came into the room and in presence of Sajal, Chandan, Karan had intercoursed me by force in their presence. All the three have injured me on my breast, back and shoulders by teeth bites while intercoursing me applying force and thereafter, Mandan brother of Chandan also came in the room who too had intercoursed me by force and that thereafter, what has happened is not known to me. I came at Shahibaug Police Station on gaining consciousness with my sister Vaishali to lodge this complaint. Yesterday i.e. 31.12.2003 being the last day of the year and as a part of celebration thereof, the above referred Sajal Jain (A-4), Chandan Jaiswal (A-3), Mandan Jaiswal (A-2) Karan @ Montu (A-12) and Sugam Jaiswal (A-1) have in collusion with each other and by extending false pretext of Chandan having arranged the party, called me at 10:00 p.m., at Hotel Ashok Palace which is the hotel of Chandan and by taking me in the room no.106 of Ashok Palace, Sajal Jain by applying force and slapping me made me to drink beer. Sajal Jain, Chandan Jaiswal, Mandan Jaiswal and Karan @ Montu all the four have by beating and slapping me and by applying force have intercoursed me one by one and have since injured me breast, shoulder, backside by biting me and thereafter, have since ran away. I file the present complaint against all of them to investigate. My witnesses will be those who will be available during the police investigation. I am desirous to take the medical treatment. The contents of the complaint as are dictated by me are true and correct. 5. I file the present complaint against all of them to investigate. My witnesses will be those who will be available during the police investigation. I am desirous to take the medical treatment. The contents of the complaint as are dictated by me are true and correct. 5. The police had investigated into the complaint and the pertinent aspect is that pending the investigation on 7.1.2004 and as per the prosecution case following suicidal note (Ex.571) was written by the deceased, whose English transaction is as under:- I myself Bijal Joshi and Sajal Jain, Chandan Jaiswal, Mandan Jaiswal, Sugam Jaiswal, Karan Jain, who have raped me are responsible for my suicide. The facts of this incidents happened with me have also affected my family. The mouth of the people are not stopping. Finally, I being a girl will only be defamed. I know that, but Lord will punish this people. Bhavin please forgive me. Father, I am proud of you being my Father and in the next incarnation also I would not become your girl. I have given you too much unhappiness. Forgive me. Vaishali I have also harassed you a lot. Even though you have difficulties of your own, you have helped me. My sister please forgive me. What shall I write about you to you my mother? I have got great parents, but you did not get such a daughter. Forgive me. My Yash, my child, my son, you have to study, isn't it? In the next incarnation I will not take birth as daughter in this house, but surely I will become your mother. Take care of my prince. Vaishali take care of Hemant and Naurin. I loved Sajal a lot, but he raped me in return of my love. Never mind, he acted as desired by almighty. See that Sajal is punished. This is not my betrayal, but the truth and may be cowardice. I will not be able to confront all these. Forgive me. Your defamed daughter. Sd/- Bijal Joshi 6. I loved Sajal a lot, but he raped me in return of my love. Never mind, he acted as desired by almighty. See that Sajal is punished. This is not my betrayal, but the truth and may be cowardice. I will not be able to confront all these. Forgive me. Your defamed daughter. Sd/- Bijal Joshi 6. The police, after investigation filed the charge-sheet against A-1 to A-4 and A-12 and A-13 for the offence under Section 376(2)(g) read with Section 120-B and under Sections 323, 324, 342, 328 read with 120-B of IPC; alternative under Section 376(2)(g) read with Section 34, under Section 323, Section 328 read with Section 34 of IPC, under Section 66(1)(6) and Section 85(1)(3) of Bombay Prohibition Act and other offences under other provisions of IPC. Pending the trial all the applicants accused had applied for bail, however, they were not released on bail by the learned Sessions Judge as well as by this Court and they were in custody as under-trial. 7. Before the learned Sessions Judge, the prosecution had examined 50 witnesses and the prosecution had also produced 127 + 94 = 221 documentary evidences, in support of its case. The learned Sessions Judge in exercise of her power under Section 165 of Indian Evidence Act called for certain records of four documents, including the suicidal note, which was part of the record of other Sessions Case. The learned Sessions Judge ultimately has passed the following order for conviction of the concerned applicants, which reads as under:- (A) The A-1 Shri Sugam alias Monty S/o. Harishankar Jaiswal, the A-2 Shri Ashok alias Madan S/o. Pannalal Jaiswal, the A-3 Shri Sajal S/o. Sureshkumar Jain and the A-12 Shri Dharmendra alias Karsan alias Montu S/o. Mahendrakumar Jain are hereby held guilty and are hereby convicted for the offences punishable u/s. 323, 328, 342, 376(2)(g) r/w. Sec.34 of the Indian Penal Code. (B) The A-1 Sugam alias Monty S/o. Harishankar Jaiswal is hereby held guilty and is hereby convicted u/s. 66(1)(b) and Sec.85(1)(3) of the Bombay Prohibition Act, 1949. (B) The A-1 Sugam alias Monty S/o. Harishankar Jaiswal is hereby held guilty and is hereby convicted u/s. 66(1)(b) and Sec.85(1)(3) of the Bombay Prohibition Act, 1949. A-2, A-3, A-4 and A-12 respectively Ashok alias Madan S/o. Pannalal Jaiswal, Chandan S/o. Pannalal Jaiswal, Sajal S/o. Sureshkumar Jain and Dharmendra alias Karan alias Montu S/o. Mahendrakumar Jain are granted benefit of doubt against the charge u/s.66(1)(b) and 85(1)(3) of the Bombay Prohibition Act, 1949 and are acquitted qua the said charges by granting them benefit of doubt. 8. The learned Sessions Judge, after hearing the concerned accused, has imposed sentence upon the applicants-concerned accused, which reads as under:- (A) The A-1 Shri Sugam alias Monty S/o. Harishankar Jaiswal is hereby held guilty and convicted for the offences u/s.66(1)(b) of the Bombay Prohibition Act to undergo 2 months rigorous imprisonment and Rs.1,000/- fine and for Sec.85(1)(3) of the Bombay Prohibition Act, 1949, to undergo 1 month's rigorous imprisonment and Rs.200/- fine and in case of default, 10 days simple imprisonment on both the counts. (B) The A-1 Shri Sugam alias Monty S/o. Harishankar Jaiswal and the A-2, A-3, and A-12 respectively Ashok alias Mandan S/o. Pannalal Jaiswal, Chandan S/o. Pannalal Jaiswal, Sajal S/o. Sureshkumar Jain and Dharmendra alias Karsan alias Montu S/o. Mahendrakumar Jain are hereby held guilty and convicted for the offences punishable u/s. 323 r/w. Sec.34 and to undergo 1 year's rigorous imprisonment and pay a fine of Rs.1,000/- each and in default to further undergo 10 days simple imprisonment each, u/s.328 r/w. Sec.34 of the Indian Penal Code, all the above accused are convicted and sentenced to undergo rigorous imprisonment of 10 years and pay a fine of Rs.10,000/- and in default, to further undergo 3 months simple imprisonment, for the charge u/s. 342 r/w. Sec.34 of the Indian Penal Code, the said accused are convicted and sentenced to undergo 1 year's rigorous imprisonment and pay a fine of Rs.1,000/- and in default thereto further undergo 10 days simple imprisonment, for the charge of gang rape u/s.376(2)(g) r/w. Sec.34 of the Indian Penal Code, the five accused are sentenced to undergo life imprisonment and pay a fine of Rs.15,000/- each and in default, to further undergo simple imprisonment for 3 months each. 9. 9. It is against the aforesaid common judgement and order of the learned Sessions Judge, all the applicants accused have preferred separate appeals being Criminal Appeals before this Court. The appeals have been admitted and the applicants have prayed in the present applications for suspension of the above referred sentence and for releasing them on bail pending the appeals. 10. We have heard Mr.Tulsi with Mr.Panchal, learned Counsel for Applicant Accused-4 (A-4), Mr.Anandjiwala, learned Counsel for Applicant Accused-1 (A-1), Mr.Susheelkumar and Mr.S.V. Raju with Ms.Sancheti, learned Counsel for Applicants Accused-2 & 3 (A-2 & A-3) and Mr.K.J. Shethna with Mr.Amin, learned Counsel for Applicant Accused-12 (A-12). We have also heard Mr.Sunil S. Shah, learned PP with Mr.Dipen Desai, learned APP for the State. 11. The contention of the learned Counsel for the respective parties to the extent found relevant would be considered appropriately at the appropriate stage hereinafter. 12. Before we proceed to consider the submission, the case law for scope of Section 389 of Cr.P.C., for exercise of the power for suspension of sentence may be relevant. The law on the said aspect, as such, is well settled, but useful reference can be made to the recent decision of the Apex Court in the case of Sidharth Vashisht alias Manu Sharma v. State (NCT of Delhi), reported in 2008(7) SCALE, 321. It has been held by the Apex Court in the said decision that once a person has been convicted, normally an Appellate Court will proceed on the basis that such person is guilty. The mere fact that during the period of trial, the accused was on bail and there is no misuse of liberty, does not, per se, warrant suspension of execution of sentence and grant of bail. Initial presumption of innocence in favour of the accused and, therefore, is no more available to the applicant. When person is convicted, he cannot be said to be innocent person until the final decision is recorded by the superior Court in his favour. It was also observed by the Apex Court in the said decision and more particularly at para 32 that even after considering that the applicant such person is guilty, it is open to the Appellate Court to suspend the sentence in a given case by recording the reasons. It was also observed by the Apex Court in the said decision and more particularly at para 32 that even after considering that the applicant such person is guilty, it is open to the Appellate Court to suspend the sentence in a given case by recording the reasons. But it is well settled, as observed in Vijay Kumar v. Narendra and Ramji Prasad v. Rattan Kumar, reported in (2002) 9 SCC, 364 that ... The Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.... . (Emphasis supplied) It has also been observed in some of the cases that in normal practice in such cases, not to suspend sentence and it is only in exceptional cases benefits of suspension can be granted. 13. It may also be recorded that the Apex Court, in the case of State of Punjab v. Deepak Mattu, reported in (2007) 11 SCC, 319, has held that a long time may be taken to decide the appeal or that there are good points to argue would not be sufficient grounds to suspend the sentence for exercise of the power by the High Court under Section 389 of Cr.P.C., more particularly when the offence is a serious offence or the gravity of the offence is very high. 14. In view of the aforesaid legal position, the present applications are required to be examined. The first part that the accused were on bail pending the trial is not, in any case, available to the present applicants, since it is an admitted position that pending the trial the accused were not on bail, but were in jail as under-trial prisoners. Further, as observed by the Apex Court in the above referred decision, once the conviction has taken place, the presumption of innocence is not available to the accused, but the Court would presume the accused to be guilty for the offence, unless the Court, for the valid reasons, finds otherwise, at the time of suspension of the sentence. The valid reasons broadly are classified as under:- (a) The nature of accusation made against the accused. The valid reasons broadly are classified as under:- (a) The nature of accusation made against the accused. (b) The manner in which the crime is alleged to have been committed. (c) Gravity of offence. (d) Desirability of releasing the accused on bail after he has been convicted for committing serious offence. Further while considering the aforesaid relevant factors or valid circumstances, the Court has to keep in mind that the normal practice in such cases is not to suspend the sentence and it is only in exceptional cases the benefit of suspension of sentence can be granted. 15. If the accusation made against the accused and the manner in which the crime is alleged to have been committed and the gravity of the offence is to be traced, it does appear that the prosecution has been able to prove the case before the learned Sessions Judge at the trial that a gang-rape was committed upon the deceased and the applicants accused were found guilty for such offence. An offence of rape itself is a serious offence and the offence of gang rape can be said as more serious. The Apex Court, in case of State of Punjab v. Gurmit Singh and Ors., reported in (1996) 2 SCC, 384, has observed that the rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The rape is not merely a physical assault and it is often destructive of the whole personality of the victim. A rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. It is true that the aforesaid view was expressed by the Court at the time of conclusion of the trial. The same approach is reiterated by the Apex Court subsequently in number of cases. The latest decision of Apex Court can usefully be referred in case of State of M.P. v. Babulal, reported in (2008) 1 SCC, 234. In the said case, it was, inter alia, observed by the Apex Court at para 29 that such case of rape need to be dealt with sternly and severely. 16. It was also observed that a socially sensitised judge is a better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicated provisos. It was further observed by the Apex Court in the very decision at para 30 that once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging potential criminals. The society can no longer endure under such serious threats. Courts must hear the loud cry for justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court (Dinesh v. State of Rajasthan (2006) 3 SCC, 771). Therefore, the offence of rape is a heinous crime against the individual, who is victim but the society can no longer endure under such serious threat if the offender of such heinous crime is allowed to move scot-free. 17. In the present case, it is not only an offence of rape, but is a case of gang-rape proved before the learned Sessions Judge. 17. In the present case, it is not only an offence of rape, but is a case of gang-rape proved before the learned Sessions Judge. Therefore, the nature of accusation made against the accused is very serious and the manner of commission of crime, if to be considered, is apparent from not only the complaint, but also corroborated and strengthened by the documentary evidence as well as by the evidence of witnesses examined by the prosecution in support of the case. At this stage, a reference to the injuries upon the body of the deceased found by Dr.Krupaben Kalpeshbhai Trivedi, M.D., DGO, PW-39 would be relevant. The learned Sessions Judge, in the judgement in page 329 to 331 has discussed the said aspects and it has been recorded by the learned Sessions Judge that as per the said doctor, the injuries could be seen as such and certain injuries were shown by the deceased victim like nail scratches below eyes, swelling on the lips, bruises on both the hands, fresh burn caused by cigarette butt etc., and the marks of belt on the back side. The other injuries described by the victim were bruises, teeth marks on breast, belt marks on hips, nail scratches near thigh, pain and burning in the private part. The said doctor, who had examined the deceased, had stated that on seeing the injuries of the victim, she was shocked. She has also observed that the deceased was heavily frustrated and withdrawn. The aforesaid examination of the deceased was on 2.1.2004, just immediately after the incident and treatment in the Civil Hospital. The victim thereafter had committed suicide on 7.1.2004 and her body was sent for postmortem. She has also observed that the deceased was heavily frustrated and withdrawn. The aforesaid examination of the deceased was on 2.1.2004, just immediately after the incident and treatment in the Civil Hospital. The victim thereafter had committed suicide on 7.1.2004 and her body was sent for postmortem. The doctor, who had examined the dead body of the deceased PW-2, Dr.Saumil Premchand Merchant had recorded the injuries on the body of the victim, which has also been recorded by the learned Sessions Judge in her judgement on page 338 to 340, which reads as under:- P.M. lividity was present on the back; rigor mortis was present in muscles all over the body, except finger and toes; P.M. lividity was found fixed in nature; dribbling marks of saliva present on the right side of the mouth; external genital showed swelling of both the lebial folds, the orifice of vagina and uterus anterium were swollen and oedomatous; hymen showed tear of 8 O'clock and 11 O'clock with surrounding oedema, the vaginal canal in the anterior fornix showed contusion and was swollen; the posterior vaginal wall was contused. The external injuries mentioned in column No.17 are as follows:- (i) Green coloured contusion present on the lateral aspect of left breast in the upper quadrant, size 4 cms x 3 cms, 4 cms above and 2 cms lateral to the nipple. (ii) Green coloured contusion present on the lateral aspect of left breast in the lower quadrant, 4 cms lateral and 2 cms below to the left nipple. Size 2 cms x 2 cms horizontal. (iii) Green coloured contusion present in the medial aspect of the left breast in the lower medial quadrant of the breast, 3 cms below and 1 cm right medial to nipple, size 2 cms x 2 cms. (iv) Green coloured contusion present on the lateral aspect of right breast in the upper lateral quadrant, 3 cms above and 1 cm lateral to the nipple. Size 2.5 cms x 2.2 cms. (v) Green coloured contusion present on the lateral aspect of right breast in the upper lateral quadrant. It is 3 cms away and above external injury no.4. Size 2 cms x 1.5 cms. (vi) Green coloured contusion present on the medial aspect of right breast in the lower medial quadrant. It is 4 cms below and 2 cms medial to the nipple. Size 1 cm x 1 cm. It is 3 cms away and above external injury no.4. Size 2 cms x 1.5 cms. (vi) Green coloured contusion present on the medial aspect of right breast in the lower medial quadrant. It is 4 cms below and 2 cms medial to the nipple. Size 1 cm x 1 cm. (vii) Abraded greenish contusion present at the tip of left deltoid region with curvature figure shape with convexity facing downward. Size 5 cms x 0.5 cms. The area showed abraded margin with scab. The intervening tissues above the convexity were contused and swollen. (viii) Green coloured contusion present on the front of the left thigh which is 13 cms below the anterior superior iliac spine which is over turned shaped convexity facing upward which is 7 cms x 0.3 cms size, 2 cms below this there was 'U' shaped abraded green coloured contusion of 6.5 x 0.2 cms size. The area showed abraded margin with scab, the intervening area was contused and swollen, size 7 cms x 2 cms, convexity facing downward. (ix) 3 cms below injury no.8, there is a similar injury with similar characters present of 6.8 cms x 0.25 cms and 5.5 cms x 2.5 cms with intervening greenish contusion of 6.5 cms x 2 cms. (x) Ligature mark: A ligature mark present around the neck which was just above the thyroid cartilage and on the left side it was going obliquely, upward and laterally which was 4 cms below the left angle of mandible and went upward and backward 2 cms below the left mastoid process and then faded into the hairs. On right side, it continued with ligature mark described on the left side. It went obliquely, upward and laterally which was 5 cms below the right angle of mandible and 1 cm below the right mastoid process and went upward and backward and faded into the hair. The total size of ligature mark was 20 cms x 1.5 cms (width) with red abraded margin. The base of ligature mark was slightly depressed with shiny brownish red in colour, hard, parchment like. Internal Injuries :- (i) Dura was intact. Brain was congested and oedematous. Column no.17, external injury sub-column no.10 corresponded to the internal injury. Skin Subcutaneous tissue and muscles underneath the ligature mark were found ecchymosed. The base of ligature mark was slightly depressed with shiny brownish red in colour, hard, parchment like. Internal Injuries :- (i) Dura was intact. Brain was congested and oedematous. Column no.17, external injury sub-column no.10 corresponded to the internal injury. Skin Subcutaneous tissue and muscles underneath the ligature mark were found ecchymosed. (ii) In thorad, both the lungs were congested and oedematous, on cut dark frothy fluid like blood came out. (iii) The stomach was almost empty. There was no peculiar smell and mucosa was healthy. Rest of the organs of deceased body were congested. The bladder was empty. (iv) Uterus non-pregnant. Size 7.5 cms. X 3.5 cms x 2.5 cms. (a) Smear was prepared from internal genital organs on clean sterile glass slides and fixed with rectified spirit for spermatozoa examinations. Smears were prepared from the following sides. i. from anterior fornix of vagina. ii. from right lateral fornix of vagina. iii. from lest lateral fornix of vagina. iv. from posterior fornix of vagina. v. from cervical canal. The slides were labeled and sealed and handed over to Police Officer on duty along with facsimile of the seal. 18. The aforesaid leads to a very strong circumstances of the manner in which the gang rape is committed and in such cases of gang rape the gravity of offence would be very high. Considering the aforesaid nature of the crime committed as that of the gang rape and the accused having been found guilty by the learned Sessions Judge, keeping in view the seriousness of the offence, the normal approach of the Court would be not to release the accused on bail if the circumstances, as observed by the Apex Court in the case of Vijay Kumar v. Narendra and Ors. (supra) and further reiterated in the case of Sidharth Vashisht alias Manu Sharma v. State (NCT of Delhi) (supra) are to be into consideration. 19. At this stage, it would be worthwhile to refer to the decision of this Court in the case of Harshadbhai Bharatbhai Ramavat v. State of Gujarat, reported in 2008(3) GLR, 2345, wherein it has been observed that at the stage of hearing of the application for suspension of sentence, it is not necessary for the Court to reappreciate the evidence at this stage, but prima facie case appearing from record. This exercise is required to be taken particularly with reference to the contentions raised by the learned Counsel for the parties. The convict may point out the glaring infirmities in the prosecution case, which would be touching to vital aspects and the very substratum of the prosecution case. Considering the prima facie such infirmities to be resulting into acquittal, the accused in such appeal may be entitled for bail but, however, if the appellate Court is not able to take such view, the course, which appears to be open is to reject the plea of bail after rejecting the request for suspension of sentence. 20. Hence, the contention raised by the learned Counsel for the applicants accused so far as they related to reappreciation of evidence on record, hardly requires to be considered at this stage for the purpose of considering the present applications for suspension of sentence or releasing on bail, since such aspects can only be concluded at the final hearing of the appeals. However, the learned Counsel for the applicant-accused did raise the following contentions to show that there are glaring infirmities in the case of the prosecution touching to vital aspects and touching to the very substratum of the prosecution case. The same shall be dealt with hereinafter for the purpose of considering the present applications at this stage and leaving the rights and contentions of both the sides open at the time of final hearing of the appeals. 21. Mr.Tulsi, learned Sr. Counsel for A-4 did raise the contention for inconsistency in the submissions of the witnesses and, therefore, he submitted that their evidences cannot be relied upon. He also contended that the statement of the deceased is inconsistent and contradictory by medical evidences and it was submitted by him that the impact of medical evidences disproves the allegation of rape. He also submitted that the called data record, the seizure of the clothes and DNA report offer no corroboration whatsoever against the allegation of rape. In the submission of the learned Counsel the oral evidence of other witnesses PW-3, PW-10, PW-20 is unnatural and contrary to the medical evidences of PW-2 and PW-39. 22. We have also considered the written submissions made by the learned Counsel for A-4. In the submission of the learned Counsel the oral evidence of other witnesses PW-3, PW-10, PW-20 is unnatural and contrary to the medical evidences of PW-2 and PW-39. 22. We have also considered the written submissions made by the learned Counsel for A-4. However, we are of the view that such falls in the arena of reappreciation of evidence, which can only be concluded at the time of final hearing of the appeals and not at this stage. Further, the detailed reappreciation of evidence is not called for at this stage and even if such contentions are considered, the same is required to be considered at the time of reappreciation of the evidence. The non-existence of semen in the vaginal swab is not a sine qua non of evidence of rape, but the essential ingredient is the penetration. Further, the contention as sought to be canvassed on the basis of rapturing of the hymen of the deceased by a particular direction, as such, can be considered, if the full reappreciation of medical evidence is considered with the opinion of the other expert. In any case, the rapturing of hymen by a particular direction or otherwise would not result into frustrating the case of the prosecution at this stage, more particularly when there is ample medical evidence available on record as well as FSL report and the further corroboration of other witnesses. Further as per the decision of the Apex Court in the case of Rajendra Datta Zarekar v. State of Goa, reported at AIR 2008 SC, 572, rapturing of hymen is not an essential ingredients to constitute rape. 23. The attempt made by the learned Counsel to contend that the scene of offence is changed from car to hotel prima facie cannot be accepted, because ample incriminating material is found from the scene of offence i.e. Room No.106 of Hotel Ashok Palace. The contention as sought to be canvassed by the learned Counsel that the possibility of the victim coming out from the Hotel to car without any clothes cannot be believed and, therefore, the place for occurrence of the incident must be of car, is not supported by the evidence on record and more particularly of PW-3, the sister of the deceased Vaishali, who has stated that the deceased was found in the car with 'T-shirt'. Further, the said part qua accused No.4 (A-4) has been discussed by the learned Sessions Judge at para 36(1) for the scene of offence after taking into consideration the history given by A-4 to the Dr. Bhavinbhai Shah - PW-37 and, therefore, the said contention prima facie is unacceptable. 24. The learned Sr. Counsel Mr.Susheelkumar as well as Mr.S.V. Raju for the applicants A-2 and A-3 did contend that there is basic infirmities in the approach of the learned Sessions Judge in considering the FIR as dying declaration of the deceased. He submitted that Section 32 of the Evidence Act has no applicability to the present case. In furtherance to his submission, the learned Counsel also relied upon the decision of Madras High Court in the case of Subramania Maistry and Anr., reported in AIR 1931 Madras 233(1) and another decision of Mysore High Court in the case of Mallappa Shivlingappa Chanagi, reported in 1962(1) Criminal Law Journal, 619 and also the decision of the Apex Court reported in 1961(2) Criminal Law Journal, 137 and the decision of the Apex Court in the case of Sudhakar and Another v. State of Maharashtra, reported in (2000) 6 SCC, 671. It was submitted that, in any case, the cause of death was not the subject matter of the Sessions Case and, therefore, the learned Sessions Judge could not have treated the FIR - complaint as dying declaration of the deceased. 25. We are prima facie not in agreement with the contention as sought to be canvassed by the learned Counsel for the aforesaid applicants. In the very decision of the Apex Court in case of Sudhakar and Another v. State of Maharashtra at page 681, it has been considered by the Apex Court that in the English law the declaration should have been made under the sense of impending death, whereas under the Indian law, it is not necessary for the admissibility of a dying declaration that the deceased at the time of making, it should have been under the expectation of death. Further, it is also observed that the test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straightjacket. Distance of time would depend or vary with the circumstances of each case. Further, it is also observed that the test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straightjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Further, all circumstances will have to be considered and it is difficult to prima facie accept the contention of the learned Counsel for the applicants accused A-2 and A-3 that Section 32 has no applicability at all or that the complaint cannot be considered, in any case, as dying declaration. 26. It may also be observed that while considering the said aspects, the observations of the Apex Court in the case of Dharam Pal and Ors. v. State of U.P., reported in AIR 2008 SC, 920 and more particularly observations made at para 11 would be relevant, wherein the Apex Court has observed that the submission of the learned Counsel for the appellant that the dying declaration, which was given the shape of FIR could not be made the basis of the conviction when the original document signed by the deceased was not brought on record, is not acceptable. Further, it was also observed that such statements would be relevant where the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of proceedings in which the cause of death goes into the question. 27. Hence, in view of the above, we prima facie do not find that the case of the prosecution is frustrated or that the same is vitally lost, nor it can be said that the substratum of the prosecution case, is abolished, on the contentions as sought to be canvassed. 28. It was also contended by Mr.Susheelkumar and Mr.Raju, learned Sr. Hence, in view of the above, we prima facie do not find that the case of the prosecution is frustrated or that the same is vitally lost, nor it can be said that the substratum of the prosecution case, is abolished, on the contentions as sought to be canvassed. 28. It was also contended by Mr.Susheelkumar and Mr.Raju, learned Sr. Counsel for A-2 and A-3 that the suicidal note in other case could not be termed as evidence in support of the case of the prosecution by the learned Sessions Judge, more particularly when the evidence was over and the statements of the accused were also recorded under Section 313 of Cr.P.C. It was submitted that if such material was not put to the accused at the time when statement was recorded under Section 313 of Cr.P.C., such cannot be at all considered by the learned Sessions Judge while considering the case of the prosecution. It was also submitted that, in any case, hand writing of the deceased on a suicidal note, was not proved and, therefore, also when the proof of the same was disputed, it could not be considered as valid evidence for tracing the guilt of the accused. 29. Whereas on behalf of the State, the learned PP Mr.Sunit Shah contended that the suicidal note was called for with consent of both the sides and, therefore, it could be considered in the evidence, to which, all the learned Counsel for the defence, contended that the consent was granted to call for the documents with the a rider that the proof of the documents would be required for treating the same as the evidence. The learned PP also contended that in the written further statement of all the accused namely; the applicants herein A-1 to A-4 and A-12, the reference has been made to the suicidal note of the deceased, which has been called for and, therefore, the learned PP contended that no prejudice is caused to the defence under these circumstances. It was also contended by the learned PP that while appreciating the case of the prosecution, the conduct of each accused before commission of offence and after commission of offence would be strong relevant circumstances and if any incriminating material is not properly explained, it can be read as an evidence against the concerned accused. It was also contended by the learned PP that while appreciating the case of the prosecution, the conduct of each accused before commission of offence and after commission of offence would be strong relevant circumstances and if any incriminating material is not properly explained, it can be read as an evidence against the concerned accused. He submitted that if such aspects are considered, it would strengthen the case of the prosecution against A-1 to A-4 and A-12. 30. We find that the evidentiary value to the suicidal note is an aspect, which could be concluded at the final hearing of the appeals and not at this stage. Further, apart from the suicidal note, prima facie there is ample sufficient material available on record, which has been considered by the learned Sessions Judge while narrating the strong circumstances qua each of the accused in her judgement, which, if considered, would not destroy the case of the prosecution even if the suicidal note is kept aside. Further, in a case where a document from the other Court case proceedings is called for by the consent, what prejudice would be caused to the defence is also an aspect, which can be concluded at the time of final hearing. Under these circumstances, we find prima facie at this stage that it cannot be said that the vital aspects of the prosecution case is lost and the accused would get an acquittal only on such situation. 31. The learned Counsel for the applicant Accused No.1, Mr.Anandjiwala contended that there is no evidence against A-1 for commission of rape and the only evidence available is he had given lift to the deceased for reaching at the hotel. He submitted that, therefore, the conclusion recorded by the learned Sessions Judge for finding guilt of A-1 for commission of rape is patently wrong and the sentence deserves to be suspended. 32. In addition to the aspects of giving lift by A-1 to the deceased, the presence of A-1 is established at the hotel and also at the car from where the deceased was found. Not only that but there is also evidence on record to show the participation of A-1 in the incident of gang-rape. It is not possible to prima facie accept the submission that A-1 did not play any role. Not only that but there is also evidence on record to show the participation of A-1 in the incident of gang-rape. It is not possible to prima facie accept the submission that A-1 did not play any role. Further, as per the decision of the Apex Court in the case of Bhupinder Sharma v. State of Himachal Pradesh , reported in (2003) 8 SCC, 551, it is not necessary that clinching proof of complete act of rape by each one of the accused on the victim is required to find the accused guilty of the gang rape. Such proposition has been reiterated by the Apex Court in the case of Priya Patel v. State of M.P., reported in (2006) 6 SCC, 263 and, therefore, prima facie we cannot accept the submission of the learned Counsel for the accused A-1 to suspend the sentence against A-1 on such ground. 33. The learned Sr. Counsel Mr.Shethna appearing with Mr.Amin for A-12 contended that A-12 is the brother-in-law of A-4 and in the Indian society, it would be impossible to believe the participation in the commission of offence simultaneously with the husband of sister i.e. brother-in-law of A-4. It was submitted that there are basic infirmities in the identification parade of A-12, and since pending the investigation the photo of A-12 was already reported in the newspaper, and the sister of the deceased PW-3, who would have known about the face of A-12, the very essence of identification parade was lost. Therefore, it was submitted that the conviction recorded by the learned Sessions Judge against A-12 is prima facie erroneous and the sentence deserves to be suspended. 34. The involvement of A-12 is found by the sufficient evidence available on record by the learned Sessions Judge, including the presence at the scene of offence. Further, there is corroborative evidence available against A-12. The contention raised by the learned Counsel based on the social position prevailing in India, prima facie, at this stage, would not be sufficient to dislodge the evidence available on record showing the presence of A-12 and his participation in the commission of gang rape. Further, the aspects of reliability of identification parade would fall in the arena of reappreciation of evidence, which could be concluded only at the time of final hearing of the appeal. Further, the aspects of reliability of identification parade would fall in the arena of reappreciation of evidence, which could be concluded only at the time of final hearing of the appeal. The other contentions as sought to be canvassed by the learned Counsel for A-12 based on the DNA report and the approach of the learned Sessions Judge on ifs and buts , falls in the arena of reappreciation of evidence in light of the other medical evidence available on records. As observed earlier, the individual role for commission of rape is not an essential requirement when the offence of gang rape is alleged and the presence of the concerned accused is found with the active participation in the whole episode. The learned Sessions Judge, while considering the strong circumstances against A-12 in the judgement has, in detail, dealt with the other aspects also, including the history recoded by the doctor at the time when he was examined. 35. Under these circumstances, prima facie we cannot accept that the case of the prosecution against A-12 is vitally erroneous or the very substratum of the case of the prosecution case against A-12 is lost, which calls for suspension of the sentence at this stage. 36. We may record that the matter is at the stage of suspension of sentence and for releasing the applicants accused on bail and, therefore, we are not required to examine each contention so minutely, which is an exercise to be undertaken at the time of final hearing of the appeals. Still however, as the contentions have been made, we have, prima facie, expressed our views. Any observations in the present order would not be treated as conclusive, leaving the parties to raise all contentions as available in law at the time of final hearing of the appeals. 37. In view of the aforesaid we find that the applications cannot be granted. Hence, they are dismissed.