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2022 DIGILAW 298 (GUJ)

Bhupatbhai Dhirubhai Chihla v. State of Gujarat

2022-02-17

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. ORAL ORDER IN R/CRIMINAL APPEAL NO. 213 of 2022 1. By way of present appeal, appellant has requested to quash and set aside the judgment and order dated 05.01.2022 passed in Sessions Case No.18 of 2017 by learned 3rd Additional Sessions Judge, Dhrangadhra, Dist: Surendranagar and acquit and discharge him. 2. Heard learned advocate for the appellant. 3. It was submitted by learned advocate for the appellant that the impugned judgment and order passed by the trial court is completely erroneous and against the documents produced on record. It was further submitted that material evidence is not considered in a proper and true spirit by the trial court. Referring the inquest panchnama Ex. 19 column 12, it is submitted the deceased caught fire by preparing tea and there was a high flame in the primus and burns injuries were caused to her. While referring deposition of PW No. 1-Ushaben Girishbhai Parmar (Exh. 18); PW-13 Bhikhabhai Atmaram Prajapati Exh. 41-Executive Magistrate, in whose presence, the said inquest panchnama was prepared and produced at Exh. 43. It was submitted that all of them in their cross examination have admitted the said details of the incident mentioned in column no. 12 of the said inquest panchnama. That, the deceased was died while getting burns injuries at the time of preparing the tea. It was further submitted that as per the prosecution, the charge was framed under Section 306 of IPC, however, without altering the charge, appellant was also convicted under Section 498A of the IPC. It was further submitted that after delay of 3 days on 18th January 2017 at about 15.30 hours, FIR Ex. 28 was registered before the Dhrangadhra Taluka Police Station at the instance of Sitaben Shankarbhai Nakiya-mother of the deceased for the offence punishable under Section 306 of IPC as alleged incident was taken place on 15.01.2017. 4. Issue requires consideration. 5. ADMIT. Learned APP waives service of notice of admission for and on behalf of the respondent-State. ORAL ORDER IN CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2022: 6. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 7. 4. Issue requires consideration. 5. ADMIT. Learned APP waives service of notice of admission for and on behalf of the respondent-State. ORAL ORDER IN CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2022: 6. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 7. By way of present application, applicant has requested to suspend the sentence imposed upon the applicant vide judgment and order dated 05.01.2022 passed in Sessions Case No.18 of 2017 by learned 3rd Additional Sessions Judge, Dhrangadhra, Dist: Surendranagar and release him on regular bail till hearing and final disposal of the captioned appeal. 8. Heard learned advocate for the applicant and learned APP for the respondent-State. 9. It was submitted by learned advocate for the applicant that the impugned judgment and order passed by the trial court is completely erroneous and against the documents produced on record. It was further submitted that material evidence is not considered in a proper and true spirit by the trial court. Referring the inquest panchnama Ex. 19 column 12, it is submitted the deceased caught fire by preparing tea and there was a high flame in the primus and burns injuries were caused to her. While referring deposition of PW No. 1-Ushaben Girishbhai Parmar (Exh. 18); PW-13 Bhikhabhai Atmaram Prajapati Exh. 41-Executive Magistrate, in whose presence, the said inquest panchnama was prepared and produced at Exh. 43. It was submitted that all of them in their cross examination have admitted the said details of the incident mentioned in column no. 12 of the said inquest panchnama. That, the deceased was died while getting burns injuries at the time of preparing the tea. It was further submitted that as per the prosecution, the charge was framed under Section 306 of IPC, however, without altering the charge, appellant was also convicted under Section 498A of the IPC. It was further submitted that after delay of 3 days on 18th January 2017 at about 15.30 hours, FIR Ex. 28 was registered before the Dhrangadhra Taluka Police Station at the instance of Sitaben Shankarbhai Nakiya-mother of the deceased for the offence punishable under Section 306 of IPC as alleged incident was taken place on 15.01.2017. 10. It was further submitted that after delay of 3 days on 18th January 2017 at about 15.30 hours, FIR Ex. 28 was registered before the Dhrangadhra Taluka Police Station at the instance of Sitaben Shankarbhai Nakiya-mother of the deceased for the offence punishable under Section 306 of IPC as alleged incident was taken place on 15.01.2017. 10. It was submitted by learned advocate for the applicant that the applicant has a child having age of six years at present and nobody is there to look after the child. That, after conviction order passed by the trial court, the friend of the applicant is taking care of child as parental or opposite side has not taken custody of the child. That, applicant was released on bail by this court in Criminal Misc. Application No. 15150 of 2017 vide order 10th July 2017 and he has not misused the liberty granted to him during the trial. That, after conviction and sentence on 5th January 2022, applicant is taken into custody and sent to the District Jail, Rajkot and since then, he is behind the bar as a convict prisoner. Hence, it was requested by learned advocate for the applicant to allow present application. 11. On the other side, learned APP has strongly objected the submissions made by learned advocate for the applicant and submitted that while recording entire evidence on record, the trial court has convicted the applicant. That, the applicant was involved in the serious offence and therefore, no leniency could be considered in favour of the applicant by granting the prayer made by him. Hence, learned APP has requested to dismiss present application. 12. Having heard learned advocate for the applicant and learned APP for the respondent-State and considering the material placed on record, it appears that two difference stories based by the prosecution against the present applicant. The complaint was lodged under Section 306 of IPC whereas charge sheet was filed under the same provisions of IPC. Trial Court has also framed charge under Section 306 of IPC and after conclusion of the trial, applicant was convicted under Section 306 and Section 498A of IPC vide order dated 5th January 2022. Undisputedly, applicant was released on regular bail under Section 439 of the Code of Criminal Procedure, 1973 by this court on 10th July 2017 in Criminal Misc. Undisputedly, applicant was released on regular bail under Section 439 of the Code of Criminal Procedure, 1973 by this court on 10th July 2017 in Criminal Misc. Application No. 15150 of 2017 considering the fact that charge sheet was filed and one and half year old child, at the relevant point of time, was under the care of friend of the applicant as both the sides i.e., parental or maternal, have not taken the custody of the child. As per the submissions of learned advocate for the application, same situation is continued as on date as nobody to look after the child having the age of about 6 years. It appears that there is no possibility that in new future, the appeal preferred by the present applicant would be decided finally. 13. Considering the depositions of the various witnesses of the prosecution including the Doctor, who has also admitted in his cross examination that burns injuries caused to the deceased was possible if a person would met with an accident while preparing a tea. There is nothing on record pointed out by the prosecution that while releasing the applicant on bail, he has misused the liberty granted to him. 14. For the aforesaid reasons, present application stands allowed. 15. Pending hearing and final disposal of the Criminal Appeal No. 213 of 2022, the order of sentence imposed upon the applicant vide judgment and order dated 05.01.2022 passed in Sessions Case No. 18 of 2017 by learned 3rd Additional Sessions Judge, Dhrangadhra, Dist: Surendranagar stands suspended and the applicant is ordered to be released on bail on furnishing personal bond of Rs. 10,000/- (Rupees Ten thousand only) with surety of the like amount to the satisfaction of the trial court and on the following conditions that the applicant shall (a) maintain law and order; (b) not indulge in any activity leading to breach of public peace and tranquility. (c) shall not leave the State of Gujarat without prior permission of this Court. (d) surrender passport, if any, to the lower court within a week; 16. Rule is made absolute to the aforesaid extent. Direct service is permitted.