Research › Search › Judgment

Gujarat High Court · body

2025 DIGILAW 513 (GUJ)

Harunbhai Adambhai Jasraya v. State of Gujarat

2025-06-20

ILESH J.VORA, P.M.RAVAL

body2025
ORDER : 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. By way of this application under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023, the applicants seek suspension of sentence awarded to them vide judgment and order of conviction and sentence dated 7.2.2025 by the learned Sessions Judge, Devbhumi Dwarka at Khambhaliya in Sessions Case No.17 of 2017. 3. By the aforesaid judgment and order of conviction and sentence, the present applicants convicts have been held guilty for the commission of offences as stated hereinbelow : Section Imprisonment Fine in Rs. In default of payment of ?ne. 143 r/w 34 of IPC RI for 6 months Nil Nil 147 r/w 34 of IPC RI for 2 Yrs Nil Nil 302 r/w 34 and 149 of IPC Life sentence RI Nil Nil 307 r/w 34 and 149 of IPC RI for 10 yrs Nil Nil 326 r/w 34 and 149 of IPC RI for 7 yrs Nil Nil 325 r/w 34 and 149 of IPC RI for 5 yrs Nil Nil 324 r/w 34 and 149 of IPC RI for 2 yrs Nil Nil 323 r/w 34 and 149 of IPC RI for six Nil months Nil 4. Learned advocate Mr.Virat Popat submitted the following glaring aspects from the impugned judgment seeking prayer for suspension of sentence of the present applicant – original accused Nos.2 to 9: (a) That the present accused and the complainant are closely related and are cousins and known to each other. However, initially only five accused were named and subsequently, the present accused Nos.3, 4, 5 and 9 were added as accused with a view to ensure entire family of the accused suffer incarceration. (b) That deceased Abdul Bachu Bhagad succumbed to the injuries on account of the vehicle being driven by accused No.1 Nazirbhai Adambhai Jasraya and none of the present applicants have played any role except for sitting in the car. (c) That there is no evidence to bring home the charges attracting sections 149 and 34 of IPC and it is specific case of the prosecution that incident had occurred on account of initial dispute between the accused No.1 and the complainant side. (d) That the prosecution witnesses have admitted the fact that initially car was dashed by accused No.8 to other victim. However, it was not fatal in nature. (d) That the prosecution witnesses have admitted the fact that initially car was dashed by accused No.8 to other victim. However, it was not fatal in nature. However, accused No.8 was beaten by the prosecution witnesses. After this incident, the second incident occurred wherein accused No.1 was driving the car which hit over and in such incident Abdul Bachu Bhagad had expired. (e) That even if the case of the prosecution is accepted in its entirety, no overact is attributed to the present applicants. (f) The present applicants have neither used any weapon nor have assaulted any of the member of the complainant party and it is only accusation against accused No.1 of dashing the car on account of which Abdul Bachu Bhagad expired. (g) It is, thus, argued that prima facie, there is no evidence on record to bring home the charges of sections 149 and 34 of IPC since the role attributed to accused Nos.2 to 7 and 9 are with regard to accompanying the original accused Nos.1 and 8 and that entire incident has taken in two parts and in the first part, accused No.8 – Sidikbhai Adambhai Jasraya had dashed the car with the complainant party where Daudbhai and his son Javed had been injured. Except this role, nothing is attributed against accused No.8 or accused Nos.2 to 7 and 9. Hence, he has prayed for suspension of sentence. 5. On the other hand, Ms.C.M.Shah, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is argued that the present application requires no indulgence at the hands of this Court since the present accused have been convicted for serious offences punishable under sections 302, 307, 326, 325, 324, 323 read with sections 143, 147, 149 and 34 of INDIAN PENAL CODE . 5.1 It is further argued that the learned trial Court has in detail discussed both the ocular and documentary evidences and has convicted the present applicants, more particulars, injured as well as eye witnesses to the said offence i.e. Azizbhai, Faizan, Bilal and Abid. Thus, learned APP has argued to reject the present application. 6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. 7. Thus, learned APP has argued to reject the present application. 6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. 7. The issue arises as to whether the applicants have made out a case for suspension of sentence under Section 430 of the Bhartiya Suraksha Sanhita 2023 or not? 8. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. In a serious offence of attracting the punishment under Section 302 of IPC, the Appellate Court has to assess the record only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs. Jai Shankar Chaudhary and Another , (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under : “30. In Kishori Lal v. Rupa , (2004) 7 SCC 638 , this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6) "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 31. In Vijay Kumar v. Narendra , (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal , (2002) 9 SCC 366 , it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar v. Narendra , (2002) 9 SCC 364 , it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 1PC, 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. 32. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra , (2005) 5 SCC 281 and Gomti v. Thakurdas , (2007) 11 SCC 160 . 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 9. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order and record of the case as well as the charges levelled against the present accused Nos.2 to 9. It transpires that except accused No.8, accused Nos.2 to 7 and 9 were only accompanying in the car in two separate incidents that took place on 13.12.2016. As far as role of accused No.8 is concerned, initially, he had hit the car wherein Daudbhai and Javed had received injuries. It is required to be noted that there is a cross cases wherein the complainant party of the present case were convicted under section 307 of IPC and also considering the fact that the parties are at loggerhead due to old enmity. It is required to be noted that there is a cross cases wherein the complainant party of the present case were convicted under section 307 of IPC and also considering the fact that the parties are at loggerhead due to old enmity. It is required to be noted that the observations made hereinabove are tentative in nature and made only for the purpose of deciding the present application for suspension of sentence. 10. Having considered the peculiar facts and circumstances of the present case, the applicants convicts stand on fair chance of acquittal and should not be kept behind the bars till conclusion of the appeal since there is no likelihood of the present appeal being taken up for final hearing in near future. Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicants and to enlarge them on bail pending Criminal Appeal. 11. Accordingly, present application is allowed. The sentence of the applicants awarded vide judgment and order dated 07.02.2025 by the learned Sessions Judge, Devbhumi Dwarka at Khambhaliya in Sessions Case No.17 of 2017 is suspended during the pendency of the Criminal Appeal and the applicants shall be released on bail on their furnishing a personal bond of Rs.25,000/- each with one surety of the like amount to the satisfaction of the trial Court subject to conditions that : (a) they shall not take undue advantage of the liberty or misuse the liberty; (b) they shall not leave India without the prior permission of the concerned Sessions 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 the residence without the prior permission of the concerned Sessions Court. (d) they shall proceed with the Criminal Appeal as and when it may be listed. 12. Rule made absolute to the aforesaid extent.