Gujarat High Court
Zala Rambha @ Ramsinh Prabhatsinh & 4 vs State Of Gujarat on 1 February, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.MA/24873/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 24873 of 2015
(FOR SUSPENSION OF SENTENCE)
In
CRIMINAL APPEAL NO. 1443 of 2015
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ZALA RAMBHA @ RAMSINH PRABHATSINH & 4....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR PRATIK B BAROT for the Applicant(s) No. 1 5
MR HL JANI APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 01/02/2016
ORAL ORDER
1. Rule. Learned APP Shri H.L. Jani waives service of notice of Rule for respondentState.
2. The present application has been filed by the applicantsoriginal accused for suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973 pursuant to the common judgment and order rendered in Sessions Case Nos.142/2011, 49/2012 & 4/2014 dated 26.11.2015 by the 3rd Additional Sessions Judge, Mehsana.
3. Heard learned advocate, Shri Pratik Barot for the applicantsappellants and learned APP Shri H.L. Jani for the respondentState.
4. Learned advocate, Shri Pratik Barot referred to Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER the papers at length including the testimony of witnesses and submitted that there are three eyewitnesses and there is no explanation of the injuries. For that purpose, he referred to and relied upon the judgments of the Hon'ble Apex Court in case of Babu Ram & Ors. Vs. State of Punjab, reported in (2009) 3 SCC 709 and in case of Mohd. Khalil Chisti Vs. State of Rajasthan & Ors., reported in (2013) 2 SCC 541 as also judgment of the Hon'ble Division Bench of this Court (Coram : R.P. Dholakia & H.N. Devani, JJ) in Criminal Misc. Application No.2755/2007 dated 11.05.2007. He, therefore submitted that testimony of the eyewitnesses are not believable. He pointedly referred to the testimony of PW1, Anandsinh Zala, Exh.62 and referring to the cross examination, he tried to submit that he is not an eyewitness as stated by him in the cross examination that when he reached the place of incident, the deceased was lying there. Similarly, he referred to the testimony of other two witnesses, Vikramsinh Zala at Exh.129 and Kanubha Zala, Exh.131 to support his submission. Learned advocate, Shri Pratik Barot while referring to the Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER testimony of PW17, Vikramsinh Zala at Exh.129 tried to emphasis that his testimony is not fully corroborating with other eyewitnesses. He also referred to the testimony of Kanubha, PW18, Exh.131 and submitted that it has been admitted in the cross that they had consulting with each other and, therefore, he tried to submit that the testimony may not be believed as they are brothers of the deceased.
5. Learned advocate, Shri Pratik Barot submitted that the applicants have served the sentence about four years and the appeal may not be heard and, therefore, considering scope of Section 389 of the Code of Criminal Procedure, 1973, the sentence may be suspended and the present application may be allowed. In support of his submissions, he has referred to and relied upon the judgments of the Hon'ble Apex Court in case of Kiran Kumar Vs. State of M.P., reported in 2002 SCCC (Cri) 1017 and in case of Suresh Kumar & Ors. Vs. State (NCT of Delhi), reported in (2001) 10 SCC 338.
6. Learned APP Shri Jani, however, referred to the papers and tried to submit that there are injured eyewitnesses and the manner in which the incident Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER has occurred, could be considered from the medical evidence and the testimony of doctor as regards the assault resulting in about 14 injuries to the deceased. Learned APP Shri Jani submitted that when there are injured eyewitnesses and the medical evidence, the injuries which are not explained, would not be sufficient to ignore or brush aside the prosecution case. In support of his submissions, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Waman & Ors. Vs. State of Maharashtra, reported in (2011) 7 SCC 295 and pointedly referred to this aspect and the observation made in para no.36. He emphasized that as observe, if otherwise the evidence is sufficient, non explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case." It has been observed, "Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then nonexplanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case."
7. Learned APP Shri Jani has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Inder Singh & Ors. Vs. State of Rajasthan, reported in (2015) 2 SCCC 734 and referring to the observations made in para nos.14 to 19 emphasized that when there is unlawful assembly with common object, the role is insignificant and, therefore, the present application may not be entertained.
8. In view of these rival submissions, the Court is required to consider briefly the material and evidence for the purpose of deciding the present application. For that purpose, the manner in which the incident has occurred, which has attracted the charges for the offence under Section 149 of the Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER Indian Penal Code also, which has been discussed in the impugned judgment, is sufficiently corroborated by other witnesses including the injured eyewitnesses. It is well accepted that merely because the injured eyewitnesses are the relatives or known persons, itself is not a ground to discard the testimony, which is otherwise reliable. The manner in which the incident has occurred itself could be covered from appreciation of evidence referring to the medical evidence regarding number of injuries to the deceased. Therefore without any further elaboration, considering the natural of offence, manner in which it has occurred and the weapon used with the gravity, when the charges for the offence under Section 149 of the Indian Penal Code are also established and it has resulted in the death of one of the persons of the complainant party, it is too difficulty to accept the submissions made referring to the scope of Section 389 of the Code of Criminal Procedure, 1973 or the discrepancies in the evidence. A useful reference can be made to the observation made by the Hon'ble Apex Court in case of Inder Singh (supra) reference to this very Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER aspect considering earlier judgments. It is well accepted that minor discrepancies cannot be readily accepted unless it goes to the root of the matter. Therefore, material and evidence on record prima facie suggesting the appreciation of material and evidence by the Court below is not misdirected. Therefore considering the scope of Section 389 of the Code of Criminal Procedure, 1973, though the submissions have been made that in absence of compelling reasons, the Court should not refuse the suspension of sentence of the execution of the sentence, it is also the fact that while considering the suspension of the sentence, it cannot be a matter of course. It is well settled that sentence may not be suspended in a routine manner and the Courts are required to consider the material as well as gravity of the offence and the manner in which the said offence has taken place couple with the fact that whether hearing of the appeal is likely to consume time. However merely the appeal may not have been heard for some time, is not an only ground and, therefore, the sentence undergone by the appellant is not a ground as the appeal could be Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Feb 05 00:48:19 IST 2016 R/CR.MA/24873/2015 ORDER also expedited. Therefore interest of justice would be served if while rejecting the present application, the appeal is ordered to be expedited.
9. It is required to be noted that there are cross case also and the bail is also granted for the reasons stated in the order passed in the application for suspension of sentence being Criminal Misc. Application No.23154/2015.
10. Therefore the present application deserves to be dismissed and accordingly stands dismissed. Rule is discharged. However the main appeal is ordered to be expedited.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Feb 05 00:48:19 IST 2016