Gujarat High Court
Asim @ Munmun @ Asif Abdulkarim Solanki vs State Of Gujarat on 6 March, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
R/CR.A/249/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 3 of 2019
In
R/CRIMINAL APPEAL NO. 249 of 2019
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ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI Versus STATE OF GUJARAT ========================================================== Appearance:
MR YS LAKHANI, SENIOR ADVOCATE for MR VAIBHAV A VYAS, ADVOCATE (2896) for the Appellant MR MITESH AMIN, PUBLIC PROSECUTOR(2) with MR HIMANSHU PATEL, APP for the Respondent State ========================================================== CORAM:HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 06/03/2019 IA ORDER (PER : HONOURABLE MR.JUSTICE A.C. RAO) 1.00. This is an application under section 389 of the Code of Criminal Procedure, 1973 at the instance of a convict (original accused No.1) seeking suspension of the substantive order of sentence of life imprisonment passed by the Additional Sessions Judge, Botad dated 3/11/2018 in Sessions Case No.105 of 2013.
2.00. We take notice of the fact that in all 4 accused were put on trial for the offence punishable under sections 302, 397, 506(2) read with 34 and 114 of Indian Penal Code and section 135 of the Gujarat Police Act.Page 1 of 13
R/CR.A/249/2019 IA ORDER At the conclusion of the trial, the trial court convicted the applicant herein along with original accused No.2 for the offence punishable under section 302 read with section 34 and 114 of Indian Penal Code and under section 135 of the Gujarat Police Act. The trial court also convicted the original accused No.2 for the offence punishable under section 25(1), (B), (A) of Arms. The trial court, however, acquitted the applicant and other three co-accused of the offences punishable under sections 397 and 506(2) of the Indian penal Code. The applicant has been sentenced to undergo life imprisonment with fine of Rs.25,000/-.
3.00. Against the judgement and order of conviction, the applicant has preferred Criminal Appeal No.249 of 2019. The appeal filed by the applicant herein has been admitted and is now pending for final hearing.
4.00 The case of the prosecution as unfolded in the course of the trial is that the PW No.28 - Khodabhai Jogarana was in the company of his friend namely Budho alias Vashrambhai at around 6.30 in the evening of 4th March, 2013.
They both left on a motorcycle to pay their respects at one Ashram situated at Paliyad road at Botad. The PW No.28 was residing the motorcycle and his friend Vashrambhai was the pillion rider. While they were passing through Shubham Complex situated at Paliyad road, they heard the sound of firing. They heard two shots of firing. On hearing the fire arm shots, they came back at the place where they heard the fire shots. They saw that near a hair cutting saloon, lots of people had gathered. The PW No.8 went inside the saloon and saw Page 2 of 13 R/CR.A/249/2019 IA ORDER Kamlesh - the deceased on a saloon chair bleeding profusely. The PW No.28 saw the applicant herein and the original accused No.2 inside the saloon. In the saloon, two employees were also present. PW No.28 saw that the accused No.2 had a revolver in his hand and the applicant herein had a Farsi sharp cutting instrument in his hand. According to the PW No.28, at that time, the deceased was telling both the accused persons to hear him and also referred to one goddess Boot Bhavani. At that time, the accused No.2, once again fired a shot on the deceased. The accused No.2 asked the PW No.28 to leave immediately otherwise, he would also be done to death. PW No.28 on being frightened came out of the shop. Thereafter, the applicant herein and the accused No.2 brought Kamlesh outside the saloon and threw him down. The applicant herein is alleged to have inflicted injuries with the weapon in his hand on the face and head of the deceased. The companion of the PW No.28 namely Vashram told PW No.28 that the person with the Farsi in his hand was one Moonmoon i.e. the applicant herein.
5.00. The trial court upon appreciation of the oral as well as documentary evidence on record, ultimately held the applicant herein and the original accused No.2 guilty of the offence of murder punishable under section 302 read with sections 34 and 114 of IPC. The applicant herein prays for suspension of the substantive order of sentence of life imprisonment pending the disposal of the Criminal Appeal filed by him against the judgement and order of conviction.
6.00. Mr.Lakhani, the learned senior counsel appearing on behalf of the applicant has made the following submissions :-
Page 3 of 13R/CR.A/249/2019 IA ORDER (1) The applicant was not present at the place of offence on the date and time of the alleged incident. He was not in Botad but he was at Anand, which is almost 200 Kms. far from the place of incident;
(2) The investigating officer in the course of the investigation recorded statements of many persons and from those statements, it is clear that the applicant was not in Botad but was at Anand at the time of the incident;
(3) The investigating officer has admitted in his cross examination that the applicant was at Anand;
(4) Although the applicant was not known to the complainant, yet he named the applicant in the FIR. This creates a grave doubt. It is contended that if the complainant had never met the applicant then how he could have named the applicant;
(5) As per the evidence of the complainant, one Vashram told him the name of the applicant, however, the presence of Vashram at the place of offence is extremely doubtful;
(6) That the said witness Vashram has not been examined as the prosecution witness;
(7) The accused No.2 had motive and some enmity with the deceased while the applicant - accused had nothing to do with the deceased;
Page 4 of 13R/CR.A/249/2019 IA ORDER (8) The applicant has been falsely implicated in the offence
because he happens to be the friend of the accused No.2;
(9) The investigating officer in the course of the investigation recovered one mobile phone from the applicant and the mobile location of the applicant at the time of commission of the alleged offence shows that the mobile phone of the applicant was at Anand and not at Botad;
(10) The FIR was not lodged till the inquest was completed and came to be registered almost after 5 hours;
(11) The statement of the person in whose vehicle the deceased was taken to the hospital has not been recorded by the investigating officer. Whether there was any blood found in the autorickshaw in which the deceased was taken to the hospital is not clear;
(12) The clothes of the person who taken the deceased to the hospital, is also not recovered;
7.00. Mr.Mitesh Amin, the learned Public Prosecutor appearing with Mr.Himanshu Patel, the learned APP, appearing on behalf of the respondent State has made the following submissions :
(1) The applicant has failed to establish his plea of alibi before the trial court;
(2) The applicant cannot rely on the evidence of cross-
examination of the prosecution witnesses for his defence of Page 5 of 13 R/CR.A/249/2019 IA ORDER alibi;
(3) The applicant could have proved and established his defence of alibi by leading independent evidence, but the applicant has failed to lead any such evidence in respect of his plea of alibi;
(4) It is one Vashram who told the complainant that the applicant is Moonmoon and that is how the complainant named the applicant in the FIR;
(5) The applicant has been identified by the first informant in the Identification Parade;
(6) The complainant is very much sure about the identification of Moonmoon and the testimony of the complainant remains unshaken as regards the identity of Moonmoon. The complainant has categorically deposed that the applicant had actively participated in the crime. He has deposed that the applicant was armed with a "Farsi", (a sharp cutting instrument) and inflicted injuries on the deceased;
(7) Merely because Vashram has not entered the witness box and has not been examined, the evidence of the complainant cannot be disbelieved;
(8) The applicant has criminal antecedents and was found using dummy sim card not registered in his name and at the time of his arrest, no mobile was found from him;
(9) Now a days it is very easy to raise the defence of alibi
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R/CR.A/249/2019 IA ORDER
with the help of such electronic gadgets like mobile phone etc.;
(10) The complainant was not happy from day one with the investigation and the manner in which the investigation was carried out by the investigating officer. The applicant had to come before this court during the pendency of the investigation and prayed for appropriate directions. The investigation is perfunctory. The perfunctory investigation cannot be a ground to acquit the applicant.
(11) The applicant has not proved his defence of alibi by leading independent evidence and has failed to discharge his burden to prove his plea of alibi;
(12) The offence is serious and heinous in nature and hence the applicant may not be released on bail.
8.00. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the question that falls for our consideration is, whether we should suspend the substantive order of sentence passed by the trial court.
9.00. We are conscious of the fact that the applicant has been convicted for the offence of murder. We are also conscious of the fact that ordinarily, the appellate court should be slow and loath to suspend the substantive order of sentence more particularly if it is life imprisonment. However, it cannot be said as a rule of universal law that in any circumstances, the Court cannot or should not suspend the substantive order of sentence of life imprisonment. It would all Page 7 of 13 R/CR.A/249/2019 IA ORDER depend upon the nature of the evidence which has come on record.
10.00. The case of the applicant is one of alibi. However, considering the evidence on record cursorily, it is clear that the applicant has not led any evidence to prove his defence of alibi. The burden is on the applicant to prove his defence of alibi. Prima facie it appears that from day one it is the grievance of the first informant that the investigation carried out by the investigating officer is perfunctory. He came before this Court while the investigation was in progress redressing the grievance that the investigating officer was trying to shield the applicant hereby by creating evidence in his favour. Such application ultimately came to be disposed of by this Court by appropriate directions. The submission of the applicant hinges around the fact of non-production of the call records (details) and the statements of witnesses residing at Anand. The learned counsel for the applicant vehemently submitted that the investigating officer has admitted that the materials collected by him throws considerable light as regards the plea of alibi. In this regard we may refer to the decision of the Apex Court in the case of Tomaso Bruno and another Versus State of U.P., reported in AIR 2015 S.C. (Supp) 412. Paragraph Nos.27 and 28 of the said decision read thus :-
"27. The trial court in its judgement held that non-
collection of CCTV footage incomplete site plan, non-inclusion of all the records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-
investigation production of CCTV footage, non-collection of Page 8 of 13 R/CR.A/249/2019 IA ORDER call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
28. As per Section 114(g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving goes not lie on him. The presumption under Section 114(g) of the Evidence is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act. Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114(g) of Evidence Act depends upon the nature of fact required to be proved and its importance in th controversy, the usual mode of proving it;
the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.
11.00. At the time of final hearing of the criminal appeal, the entire evidence will be re-appreciated by this Court. However, bearing in mind the relevant principles and considerations, so far as suspension of sentence of life Page 9 of 13 R/CR.A/249/2019 IA ORDER imprisonment is concerned, we are of the view that no case is made out for suspending the substantive order of sentence. We are not expected at this stage to undertake meticulous examination of the entire evidence on record.
12.00. Our endeavour therefore should be to see as to whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which ultimately the applicant convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the applicant convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision disposal.
13.00. Upon cursory scanning of the evidence on record, we are unable to agree with the contentions coming from the learned counsel for the applicant convict that, either there is absolutely no case against the applicant convict or that the evidence against him is so weak and feeble in nature, that, ultimately in all probabilities the proceedings would terminate in favour of the applicant convict. For the very same reason we are unable to accept the contention coming from the applicant convict through his learned counsel that, it would be meaningless, improper and unjust to keep the applicant convict behind the bars for a pretty long time till he is found not to be guilty of the charges.
14.00. We may refer to and rely upon the decision of the Supreme Court in the case of Ash Mohammad Vs. Shiv Raj Page 10 of 13 R/CR.A/249/2019 IA ORDER Singh, reported in 2012 (9) SCC 446, more particularly, the observations as contained in paragraph 30. The paragraph 30 reads as under :-
"30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
15.00. We may also refer to and rely upon the decision of the Supreme Court in the case of Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), reported in 2008 Cr.L.J. 3524. We may quote the observations as contained in paragraphs 16 and 32. The paragraphs 16 and 32 read 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 Page 11 of 13 R/CR.A/249/2019 IA ORDER 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.
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."
16.00. It is well settled, as observed in Vijay Kumar Versus Narendra, reported in (2002) 9 SCC 964, 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 sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted."
17.00. In the overall view of the matter, we are not persuaded to exercise our discretion in favour of the applicant convict herein. Suspending the substantive order of sentence of life imprisonment on the plea of alibi, overlooking or ignoring the direct evidence on record will be as good as Page 12 of 13 R/CR.A/249/2019 IA ORDER acquitting the accused at this stage. In the result, this application fails and is hereby rejected.
18.00. At this stage, Mr.Lakhani, the senior counsel appearing for the applicant made a fervent appeal that as the applicant is in jail past more than five years, some priority may be given to the hearing of the Criminal Appeal.
At present we are taking up Criminal Appeals of the year 2015. In such circumstances, we find it difficult to give priority to a Criminal Appeal of the year 2019. In such circumstances, the request made by the learned senior counsel for the applicant is declined.
Sd/-
(J. B. PARDIWALA, J) Sd/-
(A. C. RAO, J) RAFIK..
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