Gujarat High Court
Kirandev Balubhai Pandya vs State Of Gujarat on 8 January, 2021
Bench: Bela M. Trivedi
R/CR.A/377/2020 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. 377 of 2020
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KIRANDEV BALUBHAI PANDYA
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI for the PETITIONER(s) No.
MR RAJESH M CHAUHAN for the PETITIONER(s) No.
MS C. M. SHAH, APP for the RESPONDENT(s) No.
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 08/01/2021
IA ORDER
1. The application has been filed by the applicant
appellant original accused under section 389 of
Code of Criminal Procedure seeking suspension of
his sentence pending the Criminal Appeal No.377
of 2020.
2. The applicant herein alongwith the coaccused
Pandya Prakashbhai Ratital were tried for the
offences under sections 498A, 306, 201 and 114
of the Indian Penal Code, and the 4th Additional
Sessions Judge, Mehsana at Visnar (hereinafter
referred to as 'the Trial Court') vide impugned
judgment and order dated 29.01.2020 has
convicted the applicant for the offences under
sections 498A and 306 of the Indian Penal Code
and directed him to undergo an imprisonment for
a period of 10 years and pay fine of Rs.25,000/
and in default thereof, to undergo further
R/CR.A/377/2020 IA ORDER
sentence of six months for the offence under
section 306 of the Indian Penal Code and has
further directed the applicant to undergo
rigorous imprisonment for a period of 3 years
and pay fine of Rs.5,000/ and in default
thereof, to undergo imprisonment for a period of
three months for the offence under section 498A
of the Indian Penal Code. The appeal preferred
by the applicant against the said judgment and
order of the Sessions Court has been admitted by
this Court and is pending for final hearing.
Present application has been filed by the
applicant seeking suspension of his sentence
pending the appeal.
3. Learned Advocate Mr. Rajesh Chauhan for the
applicant submitted that the applicant who
happened to be the husband of the deceased had
taken the deceased to the hospital after the
alleged incident had taken place. There are many
discrepancies in the evidence of the doctor and
the postmortem report as regards the injuries
sustained by the deceased. He further submitted
that except the evidence of the interested
witnesses, who were the relatives of deceased,
there was no independent witness examined by the
prosecution to prove the charges of harassment
and cruelty being meted out to the deceased.
According to Mr. Chauhan, the judgment of
conviction recorded by the Sessions Court is not
tenable in the eyes of law and the appellant is
R/CR.A/377/2020 IA ORDER
most likely to succeed in the appeal.
4. However, learned APP Ms. C. M. Shah for the
respondentState has opposed this application on
the ground that the Sessions Court after
appreciating the evidence in proper perspective
has convicted the applicant and therefore, there
is prima facie case of his being guilty of the
alleged offence.
5. Having regard to the submissions made by the
learned advocates for the parties and to the
documents on record, more particularly, the
judgment passed by the Sessions Court, it
appears that the applicant who happened to be
the husband of the deceased and the coaccused
who happened to be the brotherinlaw of the
deceased were harassing the deceased and the
deceased was being subjected to cruelty, as a
result thereof, she had committed suicide by
pouring kerosene on herself and setting herself
ablaze. It also appears that the cause of said
harassment was that the deceased had given birth
to a baby girl. Considering the evidence of the
complainant, who happened to be the father of
the deceased and other evidence, the Sessions
Court has convicted the applicant accused and
therefore, there is a prima facie case made out
against the applicant.
6. It may be stated that the law as regards the
granting or refusing to grant suspension of
R/CR.A/377/2020 IA ORDER
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
R/CR.A/377/2020 IA ORDER
Sinha v. State of Bihar, (2000) 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
R/CR.A/377/2020 IA ORDER
sentence and it is only in exceptional cases
that the benefit of suspension of sentence can
be granted."
7. Thus, having regard to the nature of gravity of
offence, the Court is not inclined to suspend
the sentence of the applicantaccused.
8. In that view of the matter, present application
seeking suspension of sentence is rejected. Rule
is discharged.
(BELA M. TRIVEDI, J)
MEHUL B. TUVAR
