Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 345 (GUJ)

RAJIVBHAI BIHARIBHAI ABHANI v. STATE OF GUJARAT

2011-04-25

Z.K.SAIYED

body2011
ORDER : Z.K. SAIYED, J. 1. By way of present application, filed u/s 389 of the Code of Criminal Procedure, 1973, the applicants have prayed to suspend the sentence imposed upon them vide order dated 31st March, 2011 passed by the learned Additional Sessions Judge (F.T.C. No. 1), Bhavnagar, in Sessions Case No. 93 of 2007 and to release the applicant-original accused Nos. 1 to 4 on bail during the pendency of the appeal. 2. The learned Additional Sessions Judge (F.T.C. No. 1), Bhavnagar, by his judgment and order dated 31st March, 2011 convicted the applicants for the offences punishable u/s 306 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of five years, and also imposed fine of Rs. 5,000 to each of the applicants, and in default of payment of fine, sentenced them to undergo simple imprisonment for a further period of one year. The applicants were also convicted for the offence punishable u/s 498(A) of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for a period of one year, and also imposed fine of Rs. 1,000 to each of the applicants, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of 30 days. The applicants were also convicted for the offence punishable under Sections 3 and 7 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for a period of five years, and also imposed fine of Rs. 15,000, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of one year. 3. Heard Mr. K.B. Anandjiwala, learned Counsel for the applicants and Mr. R.C. Kodekar, learned Additional Public Prosecutor for the respondent-State. 4. Mr. Anandjiwala prays to withdraw the present application qua applicant No. 1-Rajivbhai Biharibhai Abhani is concerned. 5. In view of statement made by Mr. Anandjiwala, present application is disposed of as withdrawn qua applicant No. 1 is concerned. 6. Mr. Anandjiwala has contended that evidence recorded u/s 161 of the Code of Criminal Procedure of PW Nos. 1, 2 and 4 are interse evidence. He has also contended that the Supreme Court has considered this issue in Subhash Vs. State of Haryana, (2011) 2 SCC(Cri) 689. He has further contended that looking to the role played by applicant Nos. Mr. Anandjiwala has contended that evidence recorded u/s 161 of the Code of Criminal Procedure of PW Nos. 1, 2 and 4 are interse evidence. He has also contended that the Supreme Court has considered this issue in Subhash Vs. State of Haryana, (2011) 2 SCC(Cri) 689. He has further contended that looking to the role played by applicant Nos. 2, 3 and 4, prosecution has failed to prove ingredients of Sections 107 and 108 of the Indian Penal Code. He, therefore, contended that present application may kindly be allowed and the applicant Nos. 2, 3 and 4 may be released on bail during the pendency of appeal. 7. As against this, Mr. Kodekar, learned Additional Public Prosecutor, has vehemently opposed the present application and contended that applicants are involved in a serious offence. He has contended that the learned Additional Sessions Judge has passed the order after appreciating all the aspects of the matter. He, therefore, contended that present applicant deserves to be dismissed. 8. I have gone through the papers produced before me as well as the judgment and order of conviction passed by the learned Additional Sessions Judge (F.T.C. No. 1), Bhavnagar. 9. Looking to the facts of the case, I am of the opinion that this is a fit case to suspend the sentence awarded to the applicant Nos. 2, 3 and 4. Hence, the present application is hereby allowed. The substantive sentence is suspended qua applicant Nos. 2, 3 and 4 pending hearing and disposal of the main appeal and the applicant Nos. 2, 3 and 4 are hereby ordered to be released on bail on their furnishing surety of Rs. 10,000 each and a personal bond of the like amount on usual terms and conditions. Rule is made absolute qua applicant Nos. 2, 3 and 4 to the aforesaid extent. Rule is discharged qua applicant No. 1 is concerned. Direct Service is permitted.