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2025 DIGILAW 763 (GUJ)

Mohmad Ashif Abdulgani Memon v. State Of Gujara

2025-07-15

ILESH J.VORA, P.M.RAVAL

body2025
ORDER : P. M. RAVAL, J. 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. The present application is preferred by the applicant – Mohmad Ashif Abdulgani Memon – original accused under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 19.9.2024 by the learned Sessions Judge, Gandhinagar in Sessions Case No.31 of 2021. 3. Learned advocate Mr.Jit P.Patel appearing for the applicant has mainly contended as follows : (a) That as per the prosecution case, the present applicant was restrained from entering into the premises of Mother Dairy since the deceased Dipak Patel caught theft and manipulation of the dairy stock by the applicant herein and keeping grudge against the deceased, the applicant has committed crime. However, there exists no evidence or material in the form of the complaint, register entry or date entry which would suggest that the incident of manipulation dairy stock was committed by the applicant. On the contrary, transport contract of the applicant was renewed on 23.12.2019. Thus, very premises of motive to eliminate the deceased is negated. (b) That as per the statement of PW 11 – Nilesh Solanki one truck broke down at the premises of the Mother Dairy and therefore, the present applicant was called to get it repaired. However, it is the case of the prosecution that though the applicant’s entry in the Mother Dairy factory premises was banned, the applicant entered into the Mother Dairy by accompanying mechanic for repairing of the truck and on seeing the present applicant at the Mother Dairy, the deceased and the applicant had verbal arguments and the applicant was asked to leave the premises. However, there exists no eye witness to the said incident and no material in the form of inward/outward entry or security check has been placed on record despite the dairy being highly secured and guarded premises. (c) That accidental death came to be registered on 24.3.2020 and as per the case as narrated in the FIR, the deceased met with an accident while returning home after his shift at around 4.00 am. That inquest panchnama came to be drawn wherein the clothes of the deceased were handed over to the family of the deceased. (c) That accidental death came to be registered on 24.3.2020 and as per the case as narrated in the FIR, the deceased met with an accident while returning home after his shift at around 4.00 am. That inquest panchnama came to be drawn wherein the clothes of the deceased were handed over to the family of the deceased. However, no details with regard to the status of the clothes has been mentioned. (d) That as per the say of PW 12 – Kuldipsinh Jadhav who is Security Officer, police personnel along with Nilesh came to the Mother Dairy premises and asked the staff to leave the office. After which, Nilesh Solanki was tutored and beaten by the police. (e) That on 27.3.2020, the applicant was taken into the custody at around 2.15 pm based on the statement of Nilesh Solanki given by him at around 9.00 pm wherein the name of the applicant came to be disclosed as perpetrator of the alleged crime. (f) That the truck alleged to have been used for committing the offence bearing No.GJ-01-DY-6325 came to be seized and during the preparing the panchnama, piece of cloth belonging to the deceased was recovered and except for this, no details are stated in the panchnama with regard to the body of the truck and any damage caused to the truck since it is the case of the prosecution that alleged accident was executed by the present applicant by dashing with the motor cycle of the deceased. Thus, it is argued that the evidence has been planted and the applicant has been falsely implicated. (g) That in the cross examination of PW 12 – Security Officer working at the Mother Dairy, he has stated that he saw PW 11 – Nilesh Solanki and the police in the Mother Dairy on 26.3.2020 and that PW 11 – Nilesh Solanki has been tutored and beaten by the police after the staff of the dairy was asked to leave the premises. (h) That it is only after tutoring of PW 11, the name of the applicant came to be disclosed on the basis of the statement before the police by Nilesh Solanki. That there is no evidence to the effect that PW 11 was serving as Driver with the applicant firm Jeeshan Transport since last 7 years. (h) That it is only after tutoring of PW 11, the name of the applicant came to be disclosed on the basis of the statement before the police by Nilesh Solanki. That there is no evidence to the effect that PW 11 was serving as Driver with the applicant firm Jeeshan Transport since last 7 years. On the contrary, as per the token issued with regard to the truck bearing No.GJ-01-DT-9422 by the Mother Dairy, the truck was carrying empty crate and the tokens were issued were that of Fatehsinh Chauhan @ Chiku and Dhanrajsinh Chauhan @ Guddu dated 23.3.2020. (i) That call recordings of the applicant calling Nilesh Solanki have been submitted before the learned trial Court. However, no voice spectography test is carried out and no CDR details are called for from the telecom service provider. (j) That learned trial Court has failed to consider defence raised by the applicant that he was serving as a driver in the Fire and Emergency services which is an essential service and was present on duty at Gomtipur Fire Station coupled with the fact that the applicant was also residing at the quarters at Gomtipur Fire Station since fire services are 24 hours emergency services. However, the investigating authority has not investigated and inquired the presence of the applicant at the fire station and has conducted the investigation in bias, prejudicial and perfunctory manner. (k) That during the cross examination of Rameshpuri Goswami – DW-2, it is established that the applicant was serving with Gomtipur Fire Station and it is also established that leave reports of the staff of the fire station were cancelled due to Covid as per the instructions of Chief Fire Officer dated 20.3.2020 and no staff was permitted to leave the fire station premises and be off duty. (l) That learned trial Court has failed to appreciate with regard to the presence of the applicant at Gomtipur Fire Station and has wrongly assumed the presence of the applicant at the Mother Dairy on the basis of CCTV footages which are not exhibited. (m) That T-shirt bearing “Do it with passion” has not been recovered and the presence of the applicant is merely presumed by the learned trial Court. (m) That T-shirt bearing “Do it with passion” has not been recovered and the presence of the applicant is merely presumed by the learned trial Court. (n) That there are no eye witnesses stating that the applicant was present at the Mother Dairy nor there exists any material to point out with regard to the entry and presence of the applicant in the Mother Dairy premises. (o) That learned trial Judge has failed to appreciate the evidence of PW 12 – Kuldipsinh Jadhav that so called eye witness PW 11 was tutored and beaten by the police and hence the statement under section 164 of the CrPC as well as deposition implicating the applicant was not reliable and was required to be discarded and hence, thus it is argued to allow the present application also on the ground that the period of incarceration of the applicant is almost 5 years. 4. On the other hand, Mr.L.B.Dabhi, 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 submitted that altercation between the deceased and the applicant is established by CCTV footage. The eye witness has also been examined and has deposed to that effect and has proved altercation between the deceased and the applicant and keeping grudge, the applicant has committed the crime. On perusal of the impugned judgment, learned APP has pointed out that learned trial Court has noted to that effect but in the cross examination of Nilesh Solanki – PW 11, nothing adverse has come on record and hence, it is reliable witness and conviction is passed based on appropriate appreciation of oral as well as documentary evidences. It is submitted that the talk between Nilesh Solanki and accused are also proved by the documentary evidence and that findings and judgment do not call for any interference at the stage of suspension of sentence. It is submitted that the impugned judgment and order of conviction passed by the learned trial Court is well reasoned order after appreciating both the oral as well as documentary evidences and hence, no interference is required. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. Under the circumstances, learned APP has argued to reject the present application. 5. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. 6. 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? 7. We have carefully considered the submissions made by learned advocates for the both the sides. We have also perused the impugned judgement and order which runs into 146 pages and the reasoning given by the learned trial Judge prima facice establishes involvement of the present applicant. 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, reported in (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 [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. 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 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 [Vijay Kumar v. Narendra, (2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal [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 [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. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [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." 8. Learned advocate Mr.Jit Patel appearing for the applicant is unable to point out to establish prima facie that serious error has been committed in convicting the applicant from bare reading of the impugned judgment. Such would not be a correct approach." 8. Learned advocate Mr.Jit Patel appearing for the applicant is unable to point out to establish prima facie that serious error has been committed in convicting the applicant from bare reading of the impugned judgment. However, learned advocate for the applicant has drawn attention of this Court to the examination-in-chief and cross examination of various witnesses which is not permissible at this stage. When this Court finds that there is no palpable error on the face of the impugned judgment nor has the learned advocate for the applicant being able to point out that there is fair chance of acquittal, prima facie, we are of the view that the manner in which the entire incident has taken place, role of the applicant and the reasonings given by the learned trial Court, we do not find that this a fit case to exercise discretionary powers to suspend the sentence and enlarge the applicant on bail. 9. Under the circumstances, the application fails and accordingly, the same is dismissed. Rule is discharged. Direct service is permitted.