Ramanbhai Nanjibhai Menat vs State Of Gujarat
2021 Latest Caselaw 1806 Guj

       R/CR.A/483/2020                                     IA ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           1 of 2020
             In R/CRIMINAL APPEAL NO. 483 of 2020
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RAMANBHAI NANJIBHAI MENAT Versus STATE OF GUJARAT ================================================================ Appearance:

HCLS COMMITTEE for the PETITIONER(s) No. MR NEERAJ SONI for the PETITIONER(s) No. MS C. M. SHAH, APP for the RESPONDENT(s) No. ================================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI Date : 08/02/2021 IA ORDER

1. The application has been filed by the applicants- accused seeking suspension of sentence under section 389(1) of the Code of Criminal Procedure, 1973 pending the captioned Appeal. The applicant no.1- accused no.1 has been convicted for the offences punishable under sections 323, 387, 447, 451 and 376 of IPC and the applicant no.2- accused no.2 has been convicted for the offences punishable under sections 447, 457, 387, 323, 325 and 326 of IPC, by the Sessions Court, Arvalli, Modasa vide the judgment and order dated 30.04.2019 passed in Sessions Case No.98/2013 (Old Case No.45/2013). Both the applicants accused have been sentenced for the said offences. The maximum sentence awarded to accused no.1 is of 7 years for the offence punishable under section 376 of IPC, whereas the applicant no.2- accused no.2 has been awarded maximum sentence of 7 years for the offence punishable under section 326 of IPC.

R/CR.A/483/2020 IA ORDER

2. As per the case of the prosecution, on 08.07.2011, early in the morning at about 07:00 am. the victim i.e. the mother of the complainant- Kailashben was sleeping on the cot with her son outside her house and the complainant was sleeping inside the house. The husband of the victim- Bharatbhai had gone to the fields for watering the crop. At that time, both the accused, who happened to be the brothers-in-law of the victim came to the house of the victim and started abusing and threatening her as to why did she marry her younger brother-in-law; if she had not married, they would have got all the lands etc. Thereafter, accused no.1 started beating her and also tried to rape her. During this scuffle, her husband- Bharatbhai came at the spot at that time, the accused no.2 gave him an axe blow on his head, as a result thereof, he sustained injuries. The complainant- Kailashben also upon hearing the shouts came out of the house and saw that her uncles were beating her mother and her stepfather i.e. Bharatbhai. Thereafter, the victim and her husband-Bharatbhai were taken to the hospital for treatment and the complainant i.e. daughter of the victim lodged the complaint before the Isari Police Station. On the basis of the complaint given by the complainant-Kailashben, the FIR was registered for the alleged offences and the applicants were arrested. The investigating officer after completing the investigation had submitted the chargesheet against all the four accused including the present applicants. The Sessions Court after appreciating the evidence on record,

R/CR.A/483/2020 IA ORDER

convicted and sentenced the applicants i.e. accused nos.1 and 2 as stated hereinabove and acquitted accused nos.3 and 4 from the charges levelled against them.

3. Learned advocate Mr.Neeraj Soni appearing for the applicants- original accused submitted that there were no allegation of section 376 of the IPC found in the complaint lodged by the complainant, who happened to be the daughter of the victim. He also submitted that the story put forth by the victim was not believable and there were many contradictions in the evidence of the complainant and the victim. He also submitted that having regard to the relationship between the parties, the application be allowed for the suspension of sentence of the applicants-accused.

4. However, learned APP Ms. C. M. Shah appearing for the respondent-State vehemently opposed the present application and submitted that considering the gravity and seriousness of the offences, as also the injuries sustained by the victim as well as the husband of the victim- Bharatbhai, the Court may not take lenient view in the matter, when the Trial Court has rightly convicted both the accused after appreciating the evidence on the record.

5. At the outset, it may be noted that the applicants-accused

having been convicted by the competent Criminal Court after appreciating the evidence on record, the initial presumption of innocence is not available to the applicants. It may be stated

R/CR.A/483/2020 IA ORDER

that the law as regards the granting or refusing to grant suspension of sentence pending the appeal under Section 389 of Cr. P.C., is well settled by the Supreme Court in case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi), reported in Cri. L. J. 3524 in which it has been observed in paragraphs 16, 30 to 32 as under:-

"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. 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 xxx

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)

R/CR.A/483/2020 IA ORDER

6 SCC 461, Vijay Kumar v. Narendra & Ors., (2002) 9 SCC 364 : JT 2004 Supp (1) SC 60, Ramji Prasad v. Rattan Kumar Jaiswal & Anr., (2002) 9 SCC 366 : JT 2002 (7) SC 477, State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (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 Vijay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under section 302, IPC 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."

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6. Having regard to the submissions made by the learned advocates for the parties and the evidence on record, more particularly of the victim, her daughter i.e. complainant, the injured witness- Bharatbhai as also the medical evidence, it appears that there was sufficient evidence adduced by the prosecution to prove the charges levelled against the applicants-accused. The Court is not required to dwell much into the evidence at this juncture. Suffice it to say that both the accused have been convicted and sentenced by the Sessions Court after appreciating the evidence on record. Considering the gravity and seriousness of the alleged offences and the punishments prescribed therefor, the Court is not inclined to grant the application at this stage.

7. In that view of the matter, the application deserves to be dismissed and is accordingly dismissed.

(BELA M. TRIVEDI, J) MEHUL B. TUVAR