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2023 DIGILAW 1130 (GUJ)

Ramabhai Abhabhai Vadi v. State Of Gujarat

2023-11-07

A.S.SUPEHIA, VIMAL K.VYAS

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JUDGMENT : (A.S. Supehia, J.) 1. RULE. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. The present application has been preferred by the applicants-convicts under the provisions of Section 389 of the Code of Criminal Procedure, 1973 (for short, the ‘CRPC’), for suspension of sentence imposed upon them vide judgment and order of conviction dated 28th February 2023 passed by the learned Special Judge & Additional Sessions Judge, Sabarkantha at Himmatnagar, in Special (Atrocity) Case No.16 of 2019. 3. By the aforesaid judgment and order, the learned Special Judge has convicted the applicants-appellants for the offences punishable under Sections 376(D), 342, 450 and 506(2) of the Indian Penal Code, 1860 (for short, the ‘IPC’). For the offence punishable under Section 376(D) of the IPC, the applicants-appellants have been imposed sentence to suffer rigorous imprisonment for life and also to pay a fine of Rs.50,000=00 and in default of payment of fine, further to suffer simple imprisonment for one year. Moreover, since the applicants- appellants have been imposed sentence to suffer rigorous imprisonment for life, therefore, no separate sentence has been imposed upon the applicants-appellants for the other offences punishable under Sections 342, 450 and 506(2) of the IPC. 4. At the outset, learned advocate Mr.Mangukiya submitted that since the applicant no.1 (original accused no.1) is absconding and is not traceable, he is pressing the present application only qua the applicant no.2 (original accused no.4) Sirajbhai Yusufbhai Multani and applicant no.3 (original accused no.5) Sadik Allarakhabhai Multani. 5. As per the charge (Exh.42), there are five accused arraigned in the offence and the charge is also framed under Sections 3(1)(w)(i), 3(2)(v) of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the ‘Atrocities Act’). However, at the end of the trial, the trial court has acquitted all the accused for the offences punishable under the provision of the Atrocities Act. 6. It is stated before us by learned advocate Mr.Mangukiya as well as the learned APP that, as on today, the complainant has not filed any appeal challenging the acquittal of the present applicants-appellants for the offences punishable under the provisions of the Atrocities Act. The State has also not preferred any appeal. 7. 6. It is stated before us by learned advocate Mr.Mangukiya as well as the learned APP that, as on today, the complainant has not filed any appeal challenging the acquittal of the present applicants-appellants for the offences punishable under the provisions of the Atrocities Act. The State has also not preferred any appeal. 7. When the matter was taken up for hearing, learned APP, while pointing out the provisions of the Atrocities Act, more particularly, Section 15A(5), has submitted that since the offence of the Atrocities Act was also made a part of the charge, while passing any orders in favour of the present applicants, the complainant or the victim is required to be heard. In support of his submission, learned APP has placed reliance on the Division Bench judgment of this Court in the case of Hemal Ashwin Jain (Sheth) vs. Union of India, reported in (2021) 2 GLR 1343 . Whereas, learned advocate Mr.Mangukiya has submitted that, while examining the application filed by the present applicants seeking suspension of sentence, in the wake of acquittal of the present applicants for the offences under the provisions of the Atrocities Act, the complainant or the victim is not required to be heard. He has submitted that the acquittal of the applicants of the offences for which the charge was framed under the Atrocities Act has been accepted by the complainant as well as the State since no appeal has been filed. Hence, it is urged that the present application may be allowed without issuing any notice to the complainant since the same would delay the release of the present applicants. 8. Learned advocate Mr.Mangukiya, while pointing out the provisions of Section 439 of the CRPC, which are amended, and the provisions of Section 439(1)(A) of the CRPC, which are introduced in the year 2018, has submitted that, in fact, the Legislature intended to give an opportunity to the victim or the complainant at the stage of deciding any appeal proceedings which are filed under Section 439 of the CRPC and such an intention is missing as the provisions of Section 389 of the CRPC are not amended and no such provisions which have been introduced in Section 439 of the CRPC are introduced in Section 389 of the CRPC. 9. 9. So far as the merits are concerned, learned advocate Mr.Mangukiya has submitted that even if the charge is framed, the same only refers that the present applicants (original accused nos.4 and 5) were standing away from the room in which the offence is alleged to have been committed by the other accused. Learned advocate Mr.Mangukiya has further referred to the deposition of the prosecutrix and has submitted that the same does not reveal any role of the present applicants in the offence. It is also submitted by him that, in fact, no TI parade was carried out so far as the present applicants are concerned, and in the TI parade, the other accused persons have been identified by the victim. Hence, there is no evidence against the present applicants for convicting them in the serious offence of rape. 10. It is further submitted that, in fact, the DNA profile does not reveal any complicity of the present applicants and it only discloses the names of the accused persons, namely, Shahrukh and Taufiq. Thus, it is submitted that the present application may be allowed and the sentence may be suspended qua the applicant no.2 (original accused no.4) Sirajbhai Yusufbhai Multani and applicant no.3 (original accused no.5) Sadik Allarakhabhai Multani. 11. Learned APP Mr.Raval, while pointing out the deposition of the victim, has submitted that the present applicants have also played a major role in the commission of the offence and the trial court has correctly appreciated the evidence. Hence, it is urged that the sentence is not required to be suspended. He has also referred to the observations made by the trial court in this regard and has submitted that it is a clear case of gang rape and the provisions of Section 376(D) are attracted in the offence. 12. We have heard learned advocates for the respective parties. The first issue which is required to be resolved is, whether the present application seeking suspension of sentence and release on bail can be allowed without hearing the original complainant or the victim as required under the provision of section 15A(5) of the Atrocity Act. 12. We have heard learned advocates for the respective parties. The first issue which is required to be resolved is, whether the present application seeking suspension of sentence and release on bail can be allowed without hearing the original complainant or the victim as required under the provision of section 15A(5) of the Atrocity Act. Section 15A(5) reads as under: SECTION 15A : Rights of victims and witnesses (5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing. 13. The Division bench of this Court in the case of Hemal Ashwin Jain (supra) has already discussed the entire provision of Section 15A of the Act, and has held to be intra vires, and it is only clarified that a person who is accused of committing a boilable offence or offences under the Act, it is not mandatory to grant an opportunity of hearing to the victim or the dependent as provided under Section 15A(5) of the Act in a proceeding relating to granting bail to such accused. 14. The charge at Exh.42 reveals that the accused persons were charged for the offences punishable under Sections 376(D), 342, 450, 506(2) of the IPC as well as under Sections 3(1)(w)(i), 3(2)(v) of the Atrocities Act. The trial court, vide judgment and order dated 28th February 2023, convicted the accused persons so far as the IPC offences are concerned, but acquitted them for the offences under the Atrocities Act, for which they were charged. 15. It is not in dispute that, as on date, neither the complainant nor the State has filed any appeal challenging the acquittal of the present applicants for the offences under the Atrocities Act. Thus, the present applicants, who were arraigned as accused nos.4 and 5, have already been acquitted for the offences under the Atrocities Act. 16. Section 232 of the CRPC defines the term acquittal. The same reads thus : “232. Acquittal.—If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.” 17. 16. Section 232 of the CRPC defines the term acquittal. The same reads thus : “232. Acquittal.—If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.” 17. A simple reading of the definition of acquittal would reveal that if the Judge, after examining the evidence and arguments advanced by the prosecution and defence, finds that there is no evidence to hold the accused for having committed the offence, the judge is required to record an order of acquittal. ‘Acquittal’ in general term would mean that the accused is innocent of the commission of the offence, for which he was charged. It implies that no evidence has been brought up to prove that the accused has committed the offence. Thus, the effect of acquittal would be that the prosecution and the defence have miserably failed in establishing the charge or the offence of the Atrocities Act. Once the accused has been acquitted of such offence and the complainant or the State has not filed any appeal against such acquittal, indubitably the provisions of the Atrocities Act would cease to apply. The moment the provisions of the Atrocities Act cease to apply, the provisions of Section 15A(5) of the Atrocities Act would not come into play and they cannot be invoked. The charge under the Atrocity Act gets diluted after the acquittal, hence the victim or the dependent lose their right to be heard under the provision of Section 15A(5) of the Act. There is yet another vital aspect relating to the freedom of the accused, which cannot be ignored. Though, the complainant or the State are not interested in pursuing the acquittal, yet if in the application filed by the convicts seeking suspension of sentence and release on bail, the victim or the dependent is made a party and they are summoned to appear or respond to the proceedings, the same would delay the adjudication of an application seeking release on bail by suspending the sentence, though, in the first place, neither the complainant nor the State has assailed the acquittal in the offence of the Atrocities Act. The things would have been viewed from a different perspective if the complainant/victim or the state had approached the appellate court and challenged the acquittal of the accused for the offences under the Atrocities Act within the limitation period prescribed under the law. In the wake of the fact that neither the complainant/victim nor the State has chosen to challenge the acquittal, the Court, while deciding the application of the convict seeking suspension of sentence, is not under an obligation to further issue notice to the complainant/victim and call upon him to oppose or to express an opinion on the application filed by the convict seeking suspension of sentence. 18. So far the contention raised by learned advocate Mr.Mangukiya comparing the provisions of Section 439(1)(A) and 389 of Cr.P.C, we are not inclined to deal with the same as they operate in different realm. In the instant case the issue is only examined light of the provision of section 15A(5) of the Atrocity Act. 19. So far as the merits of the case is concerned, a bare perusal of the charge Exh.42 reveals that the role attributed to the present applicants, i.e. accused nos.4 and 5, is that they were standing away from the room in which the alleged offence has been committed by the other accused, i.e. accused nos.1, 2 and 3. 20. The deposition of the victim (PW-8) at Exh.80 reveals that the offence has been committed in the night hours. She did not know the accused and it is alleged that three accused persons had committed the offence by confining her into the room. The TI parades at Exh.124 and Exh.132 also pertain to the other accused except the present applicants who are accused nos.4 and 5. No TI parade has been undertaken for establishing their identity. The evidence and the DNA analysis do not, in any manner, implicate the present applicants-accused in the offence, but the other accused. Hence, the present applicants who are arraigned as accused nos.4 and 5 have carved out a case for suspension of sentence. 21. Accordingly, the application allowed apropos applicant nos.4 and 5 only. So far the applicant no.1-Ramabhai Abhabhai Vadi is concerned the application is dismissed as not pressed at this stage since he is absconding. Hence, the present applicants who are arraigned as accused nos.4 and 5 have carved out a case for suspension of sentence. 21. Accordingly, the application allowed apropos applicant nos.4 and 5 only. So far the applicant no.1-Ramabhai Abhabhai Vadi is concerned the application is dismissed as not pressed at this stage since he is absconding. The sentence imposed vide judgment and order of conviction dated 28th February 2023 passed by the learned Special Judge & Additional Sessions Judge, Sabarkantha at Himmatnagar, in Special (Atrocity) Case No.16 of 2019, is hereby suspended qua the applicant no.2 (original accused no.4) Sirajbhai Yusufbhai Multani and applicant no.3 (original accused no.5) Sadik Allarakhabhai Multani, pending hearing and final disposal of the Criminal Appeal. 22. The applicants-convicts, i.e. applicant no.2 (original accused no.4) Sirajbhai Yusufbhai Multani and applicant no.3 (original accused no.5) Sadik Allarakhabhai Multani, shall be released on bail by executing a fresh bond of Rs.15,000=00 (Rupees Fifteen Thousand) each with one surety of the like amount to the satisfaction of the trial court, on the following conditions, that : (a) they shall not take undue advantage of their liberty or misuse the liberty; (b) they shall not leave India without the prior permission of this Court; (c) they shall furnish the present address of their residence to the court concerned at the time of execution of the bond and shall not change their residence without the prior permission of this Court. (d) they shall proceed with the Criminal Appeal as and when it may be listed. 23. Rule made absolute to the aforesaid extent. Direct service is permitted.