Gujarat High Court
Mayaben Surendrabhai Kodnani vs State Of Gujarat & on 30 July, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
R/CR.MA/10567/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 10567 of 2014
In
CRIMINAL APPEAL NO. 1713 of 2012
=========================================
MAYABEN SURENDRABHAI KODNANI....Applicant
Versus
STATE OF GUJARAT & 1....Respondents
=========================================
Appearance :
MR S V RAJU, SENIOR COUNSEL ASSISTED BY MR MITESH R AMIN,
ADVOCATE for the Applicant.
MR PRASHANT DESAI, SENIOR COUNSEL ASSISTED BY MR AY KOGJE AND
MR GAURANG VYAS, SPECIAL PUBLIC PROSECUTORS for the Respondents.
=========================================
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 30/07/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI) RULE. Notice of rule has been waived by learned counsel appearing for the respondents.
We have heard Mr. S.V. Raju, learned Senior Counsel assisted by Mr. Mitesh R. Amin and Mr. Hardik Dave, learned counsel appearing for the applicant, Mr. Prashant G. Desai, learned Senior Counsel assisted by Mr. A.Y. Kogje and Mr. Gaurang Vyas, learned Special Public Preosecutors appearing for the respondent No.2 and Mr. K.N. Shastri, learned counsel appearing for the victims.
2. This application for suspension of sentence and for grant of regular bail pending her appeal has been filed by the applicant. The applicant was an accused in Sessions Case No.243 Page 1 of 9 R/CR.MA/10567/2014 ORDER of 2009 and in fact, there were 8 Sessions Cases tried. They were all clubbed together and the leading Sessions Case was treated to be Sessions Case No.235 of 2009. The applicant has been convicted for the different offences as mentioned below :-
Conviction Sentence Fine Default
under Section Sentence
of IPC
295 r/w 120-B 2 Years RI 200/- 15 days RI
427 r/w 120-B 2 years RI 200/- 15 days RI
435 r/w 120-B 2 years RI 200/- 15 days RI
436 r/w 120-B 2 years RI 1000/- 30 days RI
440 r/w 120-B 5 years RI 500/- 20 days RI
153 r/w 120-B 1 Year RI 200/- 7 days RI
153-A r/w 120-B 3 years RI 300/- 20 days RI
153-A (2) r/w 3 years RI 300/- 20 days RI
120-B
323 r/w 120-B 6 months RI 200/- 7 days RI
324 r/w 120-B 1 year RI 200/- 15 days RI
325 r/w 120-B 7 years RI 500/- 20 days RI
326 r/w 120-B 10 years RI 1000/- 30 days RI
307 r/w 120-B 10 years RI 1000/- 30 days RI
302 r/w 120-B 18 years RI 5000/- 40 days RI
3. The appellant had filed an appeal under Section 374 of the Code of Criminal Procedure, 1973. Though the appeal was filed in November 2012, it was not filed along with any regular bail application. A regular bail application was filed being Criminal Misc. Application No.6023 of 2013 wherein there were office objections, but it could not be removed by the applicant due to which it stood dismissed without reference to the Court as per the order dated 12.6.2013 passed by the Division Bench.
4. The applicant was sick and, therefore, she applied for Page 2 of 9 R/CR.MA/10567/2014 ORDER temporary bail which was granted by the Division Bench on 12.11.2013 for a period of three months. The applicant again applied for temporary bail on the same ground of medical illness, but the temporary bail application was not granted by the Division Bench and by its order dated 6.2.2014, it directed that the applicant can be treated at the Civil Hospital run by the State Government as according to the Division Bench, the treatment facility was available in the Civil Hospital and the temporary bail application was refused.
5. This order dated 6.2.2014 was challenged by the applicant before the Apex Court. The Apex Court by its judgment dated 24.2.2014 dismissed the Special Leave Petition (Criminal) No.3528 of 2014. However, liberty was granted to the applicant for filing appropriate application for grant of regular bail before the High Court. Therefore, the applicant has applied for grant of regular bail.
6. Learned counsel for the appellant has urged that the appellant had been convicted by the Special Court on the presumption of her participation in the riots though the evidence on record proves otherwise. He has further submitted that the applicant is innocent and was not involved in the alleged crime. It is further alleged that the applicant is not guilty of any conspiracy. He has further urged that she is seriously sick and Certificate dated 14.7.2014 issued by Chairman & C.D.M.O. / Medical Superintendent of Civil Hospital, Ahmedabad is on the record wherein it is stated that he had examined the applicant and she is suffering from the diseases mentioned in the Certificate and further it has been observed in the certificate that the applicant is not responding to the treatment and there was no improvement.
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7. On the other hand, Mr. Prashant Desai, learned Senior Counsel and Special Public Prosecutor appearing for the respondents has vehemently urged that looking to the heinous crime wherein large number of people had died and were injured, properties were destroyed and ransacked, the Court should not be liberal in grant of bail application and should view the matter very strictly and looking to the seriousness of the offence in which the applicant has been found to be guilty, she is entitled for no indulgence and her bail application is liable to be rejected. The argument of Mr. Desai had been adopted by Mr. K.N. Shastri, advocate for the victims.
8. An incident had taken place of killing of Kar Sevaks at Godhra in Sabarmati Express on 27.2.2002 while the Train was coming from Ayodhya halted at Godhra. After the Godhra train carnage, wide spread and large scale communal riots triggered of in the State of Gujarat. In Naroda Patiya on 28.2.2002, 96 human lives were lost which includes missing persons, 125 persons were injured, property of crores of rupees were damaged, destroyed and ransacked. The group of 8 Sessions Cases is popularly known as 'Naroda Patiya Case,' had taken place in the aftermath of the destruction of the Babri Masjid in Ayodhya, Uttar Pradesh. According to the prosecution case, the victims mainly hailed from Muslim community.
9. The Apex Court decided the difference of opinion between two Hon'ble Judges of the Apex Court on the question as to whether the communal riot cases require a different standard of proof than ordinary criminal cases. In paragraph 43 of its judgment in Kailash Gour and others v. State of Assam, (2012) Page 4 of 9 R/CR.MA/10567/2014 ORDER 2 SCC 34, the Apex Court held as under :-
"43. ... an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-`-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice."
10. Therefore, the law is settled that an accused is presumed to be innocent till he is proved guilty beyond reasonable doubt and if there is a faulty investigation or inefficiency, inadequacy or inapt handling of the investigation by the Police, then benefit of such faulty investigation has to go to the accused and not to the prosecution and the prosecution cannot escape from proving the case against the accused by leading credible evidence which is required to be established even in an ordinary crime.
11. Heinousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt. Each knot of the criminological chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the, only conclusion which must flow is that the Page 5 of 9 R/CR.MA/10567/2014 ORDER accused is guilty. Credibility of witnesses has to be measured with same yardstick, whether, it is an ordinary crime or a crime emanating due to communal frenzy. Law does not make any distinction either in leading of evidence or in its assessment.
12. The law does not make any distinction between the representatives of the people, M.L.A., Minister and others, accused of criminal offences. Neither they can claim any privilege nor can it be granted by any Court of Law. The law treats all equally. In order to do justice between the parties, the Court must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with law. Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation.
13. Now, this brings us to the argument of learned counsel for the applicant about the sickness of the applicant. In the certificate dated 14.7.2014 issued by Chairman & C.D.M.O./Medical Superintendent, Civil Hospital, Ahmedabad, it is observed as under :-
"She is suffering from (1) Intestinal tuberculosis with I.B.S. & gastro reflux disease and with severe weight loss. She is on anti tuberculosis drugs and high protein diet.
(2) Major depressive disorder with suicidal ideation, severe sleep disturbance and she was given two electro convulsive therapy under general anesthesia.
(3) Low back pain with bilateral lower limbs
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R/CR.MA/10567/2014 ORDER
radiculopathy with generalized osteoporosis and she is on injection teriparatide 0.08 ml per day subcutaneously and other osteoporotic drugs.
(4) Vertigo and peripheral neuritis.
(5) She is not responding to treatment and no improvement is observed."
14. Learned counsel appearing for the applicant has placed reliance on the decision of the Apex Court in the case of Anil Ari v.
State of West Bengal, (2009) 11 SCC 363 wherein the Apex Court has directed release of the accused though he was convicted for life imprisonment looking to his age.
15. Learned counsel appearing for the applicant has submitted that the applicant is aged 59 years and she is a senior citizen and she is having serious illness which is certified by Chairman & C.D.M.O./Medical Superintendent, Civil Hospital, Ahmedabad. Therefore, looking to her medical condition as she is not responding to the treatment of the Civil Hospital, she requires specialized treatment by private Doctors for which she is entitled for grant of regular bail.
16. So far as the merits of the matter is concerned, the learned counsel appearing for the applicant has pointed out that the applicant has been convicted with the aid of Section 120-B of the Indian Penal Code and she has been acquitted for the offences charged against her under Sections 143 to 149 and allied offences of the Indian Penal Code. He has argued that the evidence on record is suggestive that her active participation was there at the place of incident. Still however, she has been acquitted by the learned Special Judge by not considering her as a member of Page 7 of 9 R/CR.MA/10567/2014 ORDER unlawful assembly. She has been convicted with the aid of Section 120-B of the Indian Penal Code. Mr. Prashant Desai, learned Senior Counsel appearing for the respondents was asked whether apart from the evidence that the applicant arrived at the place of incident in her Car, is there any evidence with regard to prior concert or meeting of mind with the mobs which has taken the law in its own hands, the reply is in negative. Mr. Desai has tried to persuade us to believe that whenever riots were erupted in the entire State, on being arrived at the place of incident and on arriving there and inciting to the mob, itself attracted Section 120- B of the Indian Penal Code.
Suffice it to say that inspite recording findings regarding her presence at the scene of occurrence, the learned Special Judge acquitted her from all the charges levelled against her as being a member of unlawful assembly and convicted her for hatching conspiracy with thousands of people who were members of a mob. However, at this stage, whether to suspend the sentence and release the accused on bail, we would not be justified in re- appreciating the entire evidence on record. At this stage, we have to bear in mind the nature of evidence, consideration of such evidence by the learned Special Judge for the purpose of prima facie satisfaction of the validity of the conclusions, apart from other relevant factors relating to the incident. Therefore, we deem it proper not to go into the details regarding the conclusion arrived by the learned Special Judge while determining the factors which led the learned Special Judge to believe the applicant as a conspirator.
17. We have fully considered the evidence placed before us wherein almost 11 witnesses are involving the present applicant and showing her presence at the place of incident. But we are Page 8 of 9 R/CR.MA/10567/2014 ORDER considering the application of the applicant for suspension of sentence and grant of bail pending appeal. Therefore, we deem it proper not to enter into a great detail of the evaluation of the evidence on the record as it will be seen at the time of final hearing of the appeal.
18. Though learned counsel for the applicant has tried to demonstrate before us serious contradictions and improvements, but we are not entering into the same because this will be argued and decided at the time of final hearing of this appeal.
19. For the reasons recorded above, we are of the considered opinion that the applicant is entitled for suspension of sentence. Accordingly, the present application stands allowed. The conviction and sentence dated 31.8.2012 recorded by the learned Special Judge in Sessions Case No.243 of 2009 is hereby suspended pending appeal and the applicant is hereby ordered to be released on bail on her executing bond of Rs.1,00,000/- (Rupees One Lac only) with two surety of like amount to the satisfaction of the concerned Court and subject to the condition that she shall surrender her passport, if any, before the Trial Court.
20. Bail before the Trial Court having jurisdiction.
21. Rule is made absolute. Direct service permitted today.
(V.M.SAHAI, J.) (R.P.DHOLARIA, J.) Savariya Page 9 of 9