Gujarat High Court
Ashmabanu @ Ashmakhatu W/O Basir ... vs State Of Gujarat on 8 August, 2019
Author: Harsha Devani
Bench: Harsha Devani
R/CR.A/1244/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2019
In
R/CRIMINAL APPEAL NO. 1244 of 2019
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ASHMABANU @ ASHMAKHATU W/O BASIR IBRAHIM SHAIKH Versus STATE OF GUJARAT ========================================================== Appearance:
HCLS COMMITTEE for the PETITIONER(s) No. MR PRAKASH G PANDYA for the PETITIONER(s) No. MR HK PATEL, APP for the RESPONDENT(s) No. CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI Date : 08/08/2019 IA ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this application under section 389 of the Code of Criminal Procedure, 1973 the applicantconvict seeks suspension of the execution of the order of sentence dated 3.11.2018 passed by the learned Sessions Judge, Veraval, GirSomnath in Sessions Case No.2 of 2017 and seeks to be released on bail.
2. Briefly stated, the facts of the case are that a accidental death report came to be Page 1 of 6 Downloaded on : Sat Aug 10 00:29:04 IST 2019 R/CR.A/1244/2019 IA ORDER given by one Ashwin Joshi to the Police Inspector Mr. R.A.Jadav about the incident and it was registered as A.D. No.36 of 2016 in the accidental death register. In the context of the accidental death, the father of the deceased children lodged a complaint that in view of matrimonial disputes, to carry out the threat given to the complainant on the day of the incident, the three children had been drowned in river Hiran by his wife namely the mother of the three children, which came to be registered as a first information report being Prabhas Patan Police Station ICR No.144 of 2016.
3. Upon conclusion of the trial, the trial court has found that the prosecution has proved the charge against the applicant and convicted her for the offence under section 302 of the Indian Penal Code.
4. Mr. Prakash G. Pandya, learned advocate for the applicant submitted that the applicant has been wrongly convicted for the murder of her three children at the instance of her husband. It was submitted that the children had accidentally drowned in the river and the applicant had not thrown them in the river. It was submitted that the prosecution case that on account of matrimonial disputes the applicant had thrown the children in the river does not merit acceptance for the Page 2 of 6 Downloaded on : Sat Aug 10 00:29:04 IST 2019 R/CR.A/1244/2019 IA ORDER reason that there is no proximity between the time that the applicant allegedly had a quarrel with her husband and the time of the alleged offence. It was urged that an accidental death is sought to be given the colour of murder by the applicant's husband and she has been falsely implicated. It was submitted that most of the prosecution witnesses have not supported the prosecution case and have been declared hostile and that the prosecution has not proved a single circumstance against the applicant and merely on the basis of conjecture and surmises, the applicant has been convicted for the offence punishable under section 302 of the Indian Penal Code. It was urged that the applicant has a strong prima facie case, the applicant is a woman, and hence, the court may exercise discretion in favour of the applicant and suspend the execution of the sentence and release the applicant on bail.
5. Opposing the application, Mr. H. K. Patel, learned Additional Public Prosecutor has submitted that the prosecution through the testimony of the complainant has duly proved that there was matrimonial disputes between the husband who is handicapped and the wife. That on the previous day of the incident there was a settlement but the applicant did not want to return to her matrimonial home Page 3 of 6 Downloaded on : Sat Aug 10 00:29:04 IST 2019 R/CR.A/1244/2019 IA ORDER and on the day of the incident in the morning she had threatened the complainant that if she is made to return to his house, she would drown the three children and implicate him. It was pointed out that from the testimony of witness Hamidbhai Kamalbhai, it has been established that he was going on his motorcycle on the day of the incident when at around 10:30 to 11:00 hours he had met the applicant who was going alongwith her three children on the bypass road near the corner of Suvidha Hotel going towards the scene of incident and thereafter at 11:00 a.m. the applicant had met witness Ashwinbhai Joshi and told him that her three children had drowned in the river and requested him to help her. It was submitted that thus, within a short period of time between Hamidbhai having seen her with the children and the applicant having told Ashwinbhai that her three children had drowned, the children were with the applicant. It was submitted that the children were seven years, four years and one and half years old respectively, therefore, the contention of the learned advocate for the applicant that they were bathing at a different spot from the applicant is not believable inasmuch as a one and a half year child would hardly be in a position to walk on his own, leave alone go into the river to take a bath. It was submitted that the Page 4 of 6 Downloaded on : Sat Aug 10 00:29:04 IST 2019 R/CR.A/1244/2019 IA ORDER witnesses who arrived at the scene of the offence immediately after the incident have stated that the clothes of the applicant were wet. It was submitted that when the children were last seen with the applicant, the burden lies upon the applicant to explain as to how they drowned despite the fact that she was present there, however, she has failed to do so. It was submitted that the prosecution has adduced sufficient evidence to prove the charge against the accused and that considering the gravity of the offence whereby three infant children have been drowned to death, the trial court has sentenced the applicant to imprisonment till she lives. It was submitted that no prima facie case has been made out for exercise of discretion in favour of the applicant. Moreover, considering the gravity of the offence also the applicant is not entitled to any leniency on the ground that she is a woman.
6. This court has considered the submissions advanced by the learned advocates for the respective parties and has perused the impugned judgment as well as evidence brought to the notice of the court. Having regard to the evidence on record as referred to by the learned Additional Public Prosecutor, the court is of the view that no prima facie case Page 5 of 6 Downloaded on : Sat Aug 10 00:29:04 IST 2019 R/CR.A/1244/2019 IA ORDER has been made out for exercise of discretion in favour of the applicant. The application therefore fails and is accordingly rejected.
(HARSHA DEVANI, J) (VIRESHKUMAR B. MAYANI, J) K.K. SAIYED Page 6 of 6 Downloaded on : Sat Aug 10 00:29:04 IST 2019