Gujarat High Court
Digvijaysinh Himmatsinh Jadeja vs State Of Gujarat on 5 May, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.MA/9987/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
9987 of 2016
In CRIMINAL APPEAL NO. 666 of 2016
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DIGVIJAYSINH HIMMATSINH JADEJA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
SHRI K.B.ANANDJIWALA, SENIOR ADVOCATE with V K ANANDJIWALA,
ADVOCATE for the Applicant(s) No. 1
MS. HANSA PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 05/05/2016
ORAL ORDER
1. The present Application is filed by the Applicant / Appellant - Original Accused No.11) for suspension of sentence imposed pursuant to the impugned judgment and order rendered in Sessions Case No. 19 of 2000 by the learned Additional Sessions Judge, Bhavnagar dated 22.4.2016 recording conviction and sentence as stated in detail in the impugned judgment and order.
2. Heard learned Senior Counsel Shri K.B.Anandjiwala appearing with learned Advocate Shri V.K.Anandjiwala for the Applicant / Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri May 06 01:50:35 IST 2016 R/CR.MA/9987/2016 ORDER Original Accused No.11 and learned APP Ms. Hansa Punani for the Respondent - State of Gujarat.
3. Learned Senior Counsel Shri K.B.Anandjiwala referred to the papers and the background of the facts with regard to the history of borrowing by the deceased. He submitted that it was a heavy borrowing, which led him to commit suicide when the demand for the money was made. He submitted that the necessary ingredients for the offence under Section 306 of the Indian Penal Code are not established and the impugned judgment and order recording conviction is erroneous and the Applicant / Original Accused No.11 is having fair chance of succeeding in the Appeal. He also pointedly referred to the testimony PW-4 at Exh. 152 and PW-5 at Exh.153 as well as the testimony of the brother PW-9 at Exh.164 and submitted that in fact in the year 1998, the agreement to sell was made with regard to the premises situated at the Bankers Colony and submitted that in the cross-examination, it has been clearly brought on record as to what transpired with regard to the premises, and therefore, the complaint that the house was taken away under threat and coercion is misconceived in light of the testimony of the prosecution witness - brother PW-9 at Exh.164. He pointedly referred to the cross-examination, which referred to the same property which was mortgaged with the Bank and again Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri May 06 01:50:35 IST 2016 R/CR.MA/9987/2016 ORDER another loan was taken, which has also been referred to. Therefore, learned Senior Counsel Shri K.B.Anandjiwala submitted that the present Application may be allowed as the Applicant / Original Accused No.3 was on bail pending the trial and the hearing of the Appeal may take some time. He therefore the present Application may be allowed in view of the provisions of Section 389 of the Code of Criminal Procedure.
4. Learned APP Ms. Hansa Punani referred to the suicide note as well as the other papers and also the testimony of the witnesses as referred to by learned Senior Counsel Shri K.B.Anandjiwala to emphasize that the demand for money followed with threat caused the torture and harassment, which ultimately led to commit suicide. Learned APP Ms. Punani submitted that as it appears from the suicide note, the deceased was compelled to commit suicide. and before that, the two daughters and the wife have also committed the suicide. This itself would suggest the amount of pressure which may have been placed on the Applicant / Original Accused No.3. Therefore abettment for the commission of the offence. A reference was made to the other background of the facts and the taking over of the possession of the premises i.e. 22 - Bankers Colony.
5. In view of these rival submissions, it is required to be considered Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri May 06 01:50:35 IST 2016 R/CR.MA/9987/2016 ORDER whether the present Application deserve consideration.
6. As it transpires from the background of the facts that the deceased has made heavy borrowing and the demand for the recovery led to the suicide as the same can be considered on appreciation of evidence. The moot question is whether ingredients for the offence under Section 306 of the Indian Penal Code are established or not.
7. As could be seen from the background of the facts and the rival submissions, the aspect of the abetment for the offence under Section 306 of IPC could be considered at the time of final hearing on appreciation of the evidence. The judgment referred to by learned Senior Counsel Shri N.D.Nanavaty appearing in Criminal Misc. Application No. 10621 of 2016, has also pressed in service by learned Counsel Shri K.B.Anandjiwala. Moreover, a useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment reported in (2011) 3 SCC 626 in case of M.Mohan v. State Representted by the Deputy Superintendent of Police, which referred to the aspect of abetment and suicide. It has been observed that mens rea has to be established before a person could be convicted for the offence under Section 306 IPC. Further, it requires an active act and there has to be a nexus with the act and the suicide. Therefore, without any further elaboration, as the Applicant / Original Accused No.11 was on bail pending the trial Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri May 06 01:50:35 IST 2016 R/CR.MA/9987/2016 ORDER and the hearing of the Appeal is likely to take some time as well as considering the background of the facts, the present Application deserve to be allowed. Moreover, the broad guidelines laid down by the Hon'ble Apex Court with regard to the provisions of Section 389 of Cr.PC also require consideration and the present Application deserve to be allowed and accordingly stands allowed.
8. The execution and implementation of the substantive sentence pursuant to the judgment and order rendered in Sessions Case No. 19 of 2000 by the learned Additional Sessions Judge, Bhavnagar dated 22.4.2016 shall remain suspended till the final hearing and disposal of Criminal Appeal No. 666 of 2016.
9. The Applicant / Appellant - Digvijaysinh Himmatsinh Jadeja is ordered to be released on bail, on his executing a personal bond of Rs.10,000/- (Rupees Ten thousand only) with simple surety of the like amount and subject to the conditions that he shall not take undue advantage of his liberty or abuse his liberty and also maintain law and order. If there is any change in the residential address, he will intimate to the trial court.
10.The present Application stands allowed.
Rule is made absolute. Direct service permitted.
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