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2019 DIGILAW 941 (GUJ)

Padamsinh Gagji Darbar v. State of Gujarat

2019-10-16

A.C.RAO, BELA M.TRIVEDI

body2019
ORDER : Bela M. Trivedi, J. 1. The application has been filed by the applicants (original accused nos. 2 and 3) seeking suspension of sentence and bail under section 389 of the Code of Criminal procedure. 2. The applicant No. 1 - Padamsinh Gagji Darbar (Chauhan) happens to be the father of the applicant No. 2 - Mahipatsinh Padamsinh Chauhan. Both the applicants along with the third accused Bhimsinh Padamsinh Darbar (Chauhan) (original accused No. 1), who happens to be the another son of the applicant No. 1 - Padamsinh Gagji Darbar (Chauhan), have been convicted by the learned Additional Sessions Judge, Tharad, District Banaskantha, for the offence under section 302 read with section 34 of Indian Penal Code vide judgement and order dated 30/7/2019 in Sessions Case No. 121 of 2018. 3. As per the case of the prosecution before the Sessions Court, on 9/12/2015 at about 14.30 hours, accused Mahipatsinh and his father Padamsinh had caught hold of the deceased Magabhai Savjibhai Thakore and accused Bhimsinh had given blows to the said Magabhai with Billhook (Dhariya). As a result thereof, said Magabhai died on the spot. The complaint was lodged by Khanji Havsi Thakore - brother of the deceased, which was registered as CR No. I-231 of 2015 before the Tharad Police Station. 4. The prosecution had examined 11 witnesses and adduced documentary evidence and the Sessions Court, after appreciating the same, has convicted all the three accused for the offence under section 302 read with section 34 of IPC. 5. It is submitted by Mr. Vaghela, leaned advocate appearing for the applicants that the evidence of the so-called eye witness Khanjibhai Havsibhai Thakore - Ex. 11 and Kashiben Savjibhai Lakhabhai Thakore - Ex. 13 is not reliable and there are many contradictions in their respective evidence. Taking the Court to the evidence recorded by the Sessions Court, learned advocate for the applicants submitted that the Sessions Court has failed to appreciate the evidence in right perspective and there are all chances of the applicants being acquitted at the time of final hearing of the Criminal Appeal. 6. On the other-hand, Mr. Taking the Court to the evidence recorded by the Sessions Court, learned advocate for the applicants submitted that the Sessions Court has failed to appreciate the evidence in right perspective and there are all chances of the applicants being acquitted at the time of final hearing of the Criminal Appeal. 6. On the other-hand, Mr. Himanshu Patel, learned APP appearing for the State has vehemently opposed the present application and submitted that the applicants along with third accused - Bhimsinh Padamsinh Darbar (Chauhan) (original accused No. 1) having been convicted for the serious offence under section 302 read with section 34 of IPC, no leniency may be shown to them by suspending the sentence pending the Criminal Appeal. 7. Having regard to the submissions made by the learned advocate for the applicants as well as learned APP for the State and to the evidence on record, we are of the opinion that it would not be desirable to discuss and deal with the evidence adduced by the prosecution before the Sessions Court at this juncture while considering the application for suspension of sentence and bail preferred by the applicants. At this stage, what is required to be considered is prima facie evidence against the applicants. Suffice is to say that the Sessions Court, after relying upon the oral evidence of the two eye witnesses and other witnesses and other documentary evidence on record, has convicted the applicants herein for the offence under section 302 read with section 34 of IPC and sentenced them to undergo Life Imprisonment. The competent Criminal Court having convicted the applicants for the serious offence, the initial presumption of their innocence is no more available to them. 8. At this stage it would be beneficial to reproduce the relevant part of the observations made by the Hon'ble Supreme Court in the case of Sidhartha Vashisht alias Manu Sharma Verus State (NCT of Delhi), reported in 2008 Criminal Law Journal 3524, which reads thus:- "16. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent Criminal Court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant. 17 to 29. ... 30. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to be an 'innocent person' until the final decision is recorded by the superior Court in his favour. 31. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461 ; Vinay Kumar v. Narendra and Ors. (2002) 9 SCC 364 : JT 2002 Supp (1) SC 60; Ramji Prasad v. Rattan Kumar Jaiswal and Anr., (2002) 9 SCC 366 : JT 2000 (7) SC 477; State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6; Kishori Lal v. Rupa and Ors. (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 Scale 412 : JT 008 (4) SC 461. 32. In the above cases, it has been observed that once a person has been convicted, normally, an appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vinay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under S. 302, I.P.C., the Court should consider all 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, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted." 9. Considering the nature of accusation, manner in which the crime is committed and gravity of the offence couple with the evidence of two eye witnesses and applying the ratio laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case on hand, this Court is not inclined to exercise discretion in favour of the applicants. 10. In the result, the present application is rejected. Rule is discharged.