Gujarat High Court
Kirpalsingh Jungbahadursingh ... vs State Of Gujarat & on 26 February, 2015
Author: R.D.Kothari
Bench: Ravi R.Tripathi, R.D.Kothari
R/CR.MA/404/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
404 of 2015
In CRIMINAL APPEAL NO. 1740 of 2012
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KIRPALSINGH JUNGBAHADURSINGH CHHABADA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BHARGAV N BHATT, ADVOCATE with MR RR DEWAL for the
Appellant(s) No. 1
MR PG DESAI, SPEICAL PUBLIC PROSECUTOR with MR AY KOGJE and
MR GAURANG VYAS for the Respondents
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 26/02/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE R.D.KOTHARI) Rule. Notice of Rule has been waived by learned advocates appearing for the respondents.
2. The applicant prays for suspension of sentence and/or releasing him on bail pending final hearing of appeal.
3. This is successive application, to be precise, second application by the applicant for suspension of sentence.
Page 1 of 21R/CR.MA/404/2015 ORDER
4. In earlier application i.e. Criminal Misc. Application No.7249 of 2013, the incident and fact leading to filing of charge-sheet by SIT are referred, thus;
"2. ....... unfortunate incident of rioting took place at Naroda-Patiya Gam in the city of Ahmedabad where on 28th February 2002, large mob committed arsoning, looting and killing. In a day long incidents, 96 persons belonging to a particular community were killed and 125 were injured. Several complaints with respect to these offences were registered with the nearby police station. Investigation was carried out and statements of witnesses were recorded. The case of Naroda-Patia and several other riot related cases received the attention of the Supreme Court in a petition filed by the National Human Rights Commission ('NHRC' for short). Nine cases involving multiple murders were segregated. After initially staying the investigation/trial in such cases, the Supreme Court passed order in the year 2008 which has been reported in the case of National Human Rights Commission v. State of Gujarat, (2009) 6 SCC 342. The Supreme Court directed the State Government to issue a notification constituting a Special Investigation Team ('SIT' for short) comprising of a retired Director of CBI and other senior police officers. The State Government had indicated no objection if further investigation was done by such a team. The Government was directed to provide necessary infrastructure and resources for effective working of SIT. The SIT was to report directly to the Supreme Court and furnish before the Court in a sealed cover the report after completion of the inquiry/investigation. It was directed that SIT shall conduct inquiry/investigation including further investigation in 9 different cases, which included the case of Naroda-Patiya."
5. The Court therein has also referred various directions issued by the Supreme Court thereafter in NHRC v. State of Gujarat - (2009) 6 SCC 767.
Page 2 of 21R/CR.MA/404/2015 ORDER
6. In earlier application, this Court has recorded prima facie satisfaction qua the discussion of evidence by learned trial court and appreciation of evidence by it. Relying upon the same, the Court was pleased to dismiss the applicant's application.
7. Heard learned advocates appearing for the respective parties.
8. Learned advocate Shri Bhargav Bhatt for the applicant has drawn attention to order passed by the Supreme Court against the rejection of the earlier application for suspension of sentence. The said order of the Supreme Court is at Annexure-B. Learned advocate has also drawn attention to order of suspension of sentence passed by this Court in Mayaben Kodnani's case (Criminal Misc. Application No.10567 of 2014 in Criminal Appeal No.1713 of 2012). Relying on the said order, it was submitted that applicant claims bail on the ground of parity. It was asserted that case of the applicant stands on much better footing than the case of Mayaben Kodnani. It was pointed out that case of prosecution against the present applicant substantially rests on the evidence of two witnesses i.e. PW-157 and PW-236. Learned advocate has submitted that either of these witnesses has attributed no overt act to the present applicant. It was submitted that learned trial court has committed serious error in appreciating the evidence of these witnesses and has also erred in convicting the present applicant on basis of such evidence. Learned advocate has drawn attention to evidence of these witnesses. It was pointed out that during the initial investigation in case, name of the present applicant was not Page 3 of 21 R/CR.MA/404/2015 ORDER disclosed and the name of the present applicant came to be disclosed when the investigation was transferred to SIT. Learned advocate has also drawn attention to relevant case laws. Reference to the same may be made hereinafter.
9. On the other hand, learned Senior Advocate Shri P.G. Desai, opposing the present application, has urged that present application should be dismissed. It was pointed out that this Court in earlier application has considered all the relevant points and the submissions of the applicant and after duly considering the case of the applicant, the Court was pleased to dismiss the applicant's application. No new ground or circumstance has arisen and therefore, present application is not maintainable. Learned Senior Advocate Shri Desai has drawn attention to earlier order of this Court in above- referred applicant's application for suspension of sentence. It is submitted that in Mayaben Kodnani's case, this Court had granted the bail pending the appeal mainly on three grounds;
(i) Mayaben Kodnani is a senior citizen (ii) she is a lady and
(iii) on the medical ground i.e. her illness. Thus, it was pointed out that none of these grounds is available to the present applicant. That being so, applicant's claim for parity by relying on the order of this Court in case of Mayaben Kodnani ought not to be accepted. Further, it was pointed out that unlike the case of Mayaben Kodnani, present applicant was found to be the member of unlawful assembly (Section 149). In other words, Mayaben Kodnani was not found to be the member of unlawful assembly, while the applicant was so.
10. Learned Senior Advocate Shri Desai has also drawn attention to initial paragraph of the judgment under appeal in Page 4 of 21 R/CR.MA/404/2015 ORDER order to drive home the submission about horrendous nature of the incident. Shri Desai has pointed out that for consideration of this application, two aspects are material (i) how the offence is committed and (ii) quality of evidence and not the volume of the evidence that matters. It was submitted that even evidence of a single witness would be sufficient to find involvement of the person concerned. Shri Desai has drawn attention to decisions in the case of State of Madhya Pradesh v. Laakhan @ Lakhan, reported in (2009) 14 SCC 433, Harshadbhai Bharatbhai Ramavat v. State of Gujarat, reported in 2008 (3) GLR 2345, Sajal Sureshkumar Jain v. State of Gujarat, reported in 2009 (3) GLR 2651, Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), reported in (2008) 5 SCC 230 and Ramachandran & Ors. v. State of Kerala, reported in (2011) 9 SCC 257.
11. In earlier application for suspension of sentence, this Court, beside referring other case laws on the point, has culled out following relevant considerations from Sajal Sureshkumar Jain's case - 2010 Cri.L.J. 213 for suspension of sentence (Para.14) ;
(a) The nature of accusation made against the accused;
(b) Manner in which the crime is alleged to have been committed;
(c) Gravity of offence; and (d) Desirability of releasing the accused on bail after he has
been convicted for committing the serious offence.
Page 5 of 21R/CR.MA/404/2015 ORDER
12. In this regard, reference may also be made to Surinder Singh @ Shingara Singh's case - (2005) 7 SCC 387. In that case, appellant was charged for offence under Section 302 r/w Section 24 etc. Allowing the appellant's appeal for bail, the Supreme Court had observed, "... indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a straitjacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the court must keep in mind, has been laid down over the years by the courts in this country in a large number of decisions which are well known. ..." (Para.9).
13. We may consider the rival submissions.
14. Limited question that we are called upon to answer is, propriety of suspension of sentence in the facts of this case during the pendency of appeal. Relevant considerations for this are quoted above. As to the consideration of (a) and (b) for suspension of sentence, it can be said that these considerations are partly in favour of applicant and partly in favour of the State. It was pointed out at time of hearing that charge against the present applicant was framed on the basis of statement of PW-52 and PW-157. Learned trial court, while convicting the applicant, has not relied upon evidence of PW- 52 so far as present applicant is concerned. Learned trial court has taken aid and assistance of evidence of PW-157 and PW-236. It appears that learned trial court has summarized its finding in respect of evidence of each of prosecution witnesses in the judgment under appeal qua the accused. Applicant is Page 6 of 21 R/CR.MA/404/2015 ORDER A62 before the learned trial court. It's finding in respect of PW-157 is at Page-1204. It reads, thus;
"(c-1) Presence and participation of Guddu A22, A44, A62 in the morning occurrence stands proved beyond all reasonable doubts.
(c-2)The occurrence seen by the witness of the evening stands proved but presence or participation of the accused does not get proved beyond reasonable doubt as in the statement of SIT the name of any of the accused have not been given by the PW for the evening occurrence.
(c-3) Looting at dwelling house and shop of the witness stands proved to have occurred on the date of the occurrence beyond reasonable doubt. (Damages)"
14.1 Similarly, finding of evidence of PW-236 is recorded at Page-652. It reads, thus;
"(a) From this witness, active involvement, presence and participation of A-26, A-37 and A-62 stand proved in the charged offence beyond all reasonable doubt for the morning incident.
(b) From the facts and circumstances, probability of the accused to have hatched the conspiracy. The accused in the mob attacked Nurani Masjid, burst the gas cylinders, tanker of kerosene was pushed - it was damaged and destroyed.Page 7 of 21
R/CR.MA/404/2015 ORDER
(c) A-2, A-17, A-20, A-24 and A-44 have been granted benefit of doubt qua the PW.
(d) A-37 has been attributed role of delivering provoking speech and instigating the members of mob (morning). Attempt to file complaint against the A-37 in the year 2002 was failed.
(At about 11.00 a.m., A-37 came in her car, she gave signals to the mob hence mob came closer to her, she talked with the mob where about 100 leaders in the mob were present. After Mayaben went away, the mob attacked on Nurani.)
(e) The PW has suffered damages.
(f) The PW knows A-26, A-37 and A-62 prior to the incident.
(g) A-37 came twice in the morning in the area.
(h) A-26 has offered bribe to give affidavit in his favour and upon denial, threatened the PW."
15. It was submitted by learned advocate for the applicant at the time of hearing that conviction of applicant hangs virtually on evidence of these two witnesses. It was asserted - as observed above - that on careful reading of evidence of these witnesses, it would appear that no overt act is attributed to the present applicant. As against this, it was submitted that Page 8 of 21 R/CR.MA/404/2015 ORDER various witnesses - (as many as twelve) - have deposed referring Mayaben Kodnani by her name. Strong emphasis placed by learned advocate for the applicant on the point that volume of evidence against the present applicant is very minimal and assertion on this line, has led learned Senior Advocate Shri Desai to urge that quality of evidence counts and further the fact that applicant is a member of unlawful assembly itself is sufficient to hold the applicant guilty. Strong emphasis placed by Shri Desai on later submission has led learned advocates for the parties to draw the attention to scope of Section 149. Shri Desai has drawn attention to Ramchandran's case - (2011) 9 SCC 257. Scope and object of Section 149 of IPC is laid down in Para.17 which reads, thus;
"17. Section 149 IPC has essentially two ingredients viz.
(i) offence committed by any member of an unlawful assembly consisting five or more members and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object."
16. In that case, as per the case of the prosecution, appellant had formed unlawful assembly for committing murder of PW-2. On 12.4.2000, the appellant, armed with deadly weapons, carried out an attack at the residence of PW-
2. They aimed at PW-2, however, in the incident, father of PW- 2 received fatal injuries and PW-2 and others were injured. The trial court had convicted A1 to A11, A14 and A15 for offence under Sections 302, 307 and for forming unlawful assembly and for other offences. A12, A13, A16 and A17 were Page 9 of 21 R/CR.MA/404/2015 ORDER convicted for offence under Sections 307 and for forming unlawful assembly and for other offences. A18 came to be acquitted. In appeal, the High Court had modified the conviction for offence under Section 302 qua some of the accused. However, substantially the appeal was dismissed by the High Court. In further appeal by the appellant / accused, the Supreme Court has laid down as above and has modified the sentence of some of the accused.
17. Learned advocate Mr.Bhargav Bhatt for the applicant, in reply, has drawn attention to Musa Khan's case - AIR 1976 SC 2566, more particularly Para.5 which reads, thus;
"5. .... It is well settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus a Court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage but not at another. ..."
17.1 Following points emerge from the Ramchandran's case (Supra) and Musa Khan's case (Supra);
Page 10 of 21 R/CR.MA/404/2015 ORDER
(i) Gathering of five or more persons is first essential for
unlawful assembly;
(ii) Such unlawful assembly should have common object;
(iii) Such unlawful assembly has gathered for commission of
offence/s;
(iv) Members of such unlawful assembly knew that gathering
is for said common object;
(v) Possibility of knowledge of common object and to be
exact,members likely to know about common object is sufficient to attract Section 149;
(vi) However, each and every member of unlawful assembly even when his presence is proved in or near riotous mob by itself does not become liable;
(vii) For such person, the argument will still open that his association with assembly in commission of offence was not from beginning to end and that his association in it is insignificant; in addition to this and to put it differently -
(viii) Prosecution has to prove sharing of common object by such person at all the crucial stages;
(ix) Literally speaking, Section 149 is not in two parts i.e. Part-I and Part-II, however, in Ramchandran's case (supra), it was held that participation of all the accused governed by second part of Section 149 and Page 11 of 21 R/CR.MA/404/2015 ORDER therefore, overt act by individual looses significance.
(x) Close reading of scope and object as stated in Ramchandran's case (supra) and ratio of Musa Khan's case (supra) gives impression that, they are at some variance;
18. Section 149 enunciates principle of vicarious liability. Broadly, it cannot be denied that prosecution is not required to establish overt act on the part of each of the members of unlawful assembly nor it is required to show - prior meeting of mind by the members of unlawful assembly.
18.1 In the present case, on the day of incident, it appears that incident has occurred in morning and also in evening. So far as the evening incident is concerned, evidence of PW-157 and PW-236 is not believed by the learned trial court. On re- reading of the finding of the learned trial court on evidence of PW-157 and PW-236 so far as the applicant is concerned, it cannot be denied that balance tilts in favour of applicant.
18.2 Either of these two witnesses has not attributed shouting of slogans by the applicant nor wearing of distinctive clothes or saffron or red band by the applicant. However, it is also say of PW-236, that from the Trax Jeep, the present applicant was distributing arms to the mob. This is a serious assertion implicating the present applicant. Since the trial is over for appreciating this say, we may take liberty to observe that if we read the evidence as a whole of PW-236, it does not give impression that PW-236 intended to say that the applicant has played material or important role in the riot.
Page 12 of 21R/CR.MA/404/2015 ORDER Tone and tenor is not on that line. The say of the witnesses is in the nature of passing reference in the course of deposition. The nature of assertion - at least prima facie - gives impression that no undue importance need to be paid to his say. Besides that, it is important to note that neither PW-157 nor any other witnesses has attributed such role of the applicant in the incident. The say of PW-157 as to the occurrence of the incident and the role alleged to have been played by the applicant on the date of the incident is somewhat at variance with the say of PW-236. This much appreciation of evidence is sufficient for considering the suspension of sentence. It may also be borne in mind that in two earlier statements of PW-157 recorded in the year 2002, even name of the present applicant is not mentioned. It is only when the investigation was transferred to SIT in the year 2008, the name of the present applicant was revealed. Here also,PW-236 in his statement before the Police/SIT either does not refer the applicant or refers him as - "Pati of Mayaben"
and not as PA of Mayaben". In this regard, it is the say of the applicant in his additional FS that he has never been PA of Mayaben. The learned trial Court in the judgment under appeal has come to the conclusion that ".... the applicant was one of the leading person of the area and was a political worker. ..."
18.3 The say of PW-157 referring the present applicant is somewhat odd. He says that the mob was at three different places. One at Noorani Masjid - there the people were in the group and in disperse manner - second mob was at Natraj Hotel and third mob was at Krishnanagar. The present applicant was in the one of group gathered at Noorani Masjid.
Page 13 of 21R/CR.MA/404/2015 ORDER PW-157 says that in the mob gathered there one Bipinbhai autowala was there. The police was there and the present applicant was behind them. PW-157 was at Chetandas ni Chawl. What does 'behind' means? It is difficult to appreciate that how the person standing behind the police personnel can be located from the distance. At the time of hearing, attention was also drawn to Maps produced on record. It cannot be denied that the say of PW-157 in this regard is somewhat odd and at least it is not clear.
18.4 As to the PW-236 we may note that referring the circumstances and the background, the applicant has tried to demonstrate that the say of PW-236 and to be precise his conduct is unnatural and, therefore, the learned trial Court has seriously erred in believing the version of such witness. It is also the say of the applicant that at initial stage, the prosecution had place reliance only on statement of PW-52 and PW-157. The evidence of PW-52, so far as the applicant is concerned, is not believed by the learned trial court. As to the evidence of PW-236 various comments made by learned advocate for the applicant. One such comment may be referred to. If we refer the evidence of I.O., who has recorded the statement of this witness in 2008, in his cross he agrees that in the statement recorded by the police, the name of the present applicant is not mentioned (Para.698) and later on, he says that in the statement reference is, "....Mayaben came with her husband' (para.700). Para.699 is also possible to read, in this regard, in favour of the applicant. We may also note that the say of PW-236 was not believed by the learned trial Court so far as A-2, A-17, A-20, A-24 and A-44 is concerned and that being so - the submission of the learned Page 14 of 21 R/CR.MA/404/2015 ORDER advocate for the applicant - the learned trial Court has seriously erred in believing the say of these witnesses so far as the applicant is concerned. It may also be noted that A-2, A- 20 and A-44 were in the end came to be convicted by the learned trial Court.
19. In view of above, so far as first two considerations for suspension of sentence are concerned, viz., nature of accusation made against the accused and second, manner in which the crime is alleged to have been committed - it is the say of the prosecution that accusation is extremely serious and the fact that 96 persons had met with homicidal death and 125 were injured itself speaks the manner in which the crime came to be committed. If we bear in mind the incident as a whole, it is clear that these two considerations are in favour of prosecution. On the other hand, say of the applicant is that, that not the incident as a whole but the role alleged to have been played and part said to have been taken by the applicant in the incident should be considered by the Court. It was submitted - as observed above - the case of prosecution rests on say of PW-157 and PW-236 and in fact, learned trial court has based its conclusion mainly by relying on evidence of PW- 157 and PW-236. Considering the nature of their evidence - it was submitted - so far as the applicant is concerned, these two points under consideration should not be read against the applicant.
20. Considering the rival submissions of learned advocates on these two points, we are of the view that applicant has arguable case. Or perhaps, more than that. It is true that arrival and/or presence of the applicant at the scene of Page 15 of 21 R/CR.MA/404/2015 ORDER offence - if believed - that by itself is sufficient to make the way for Section 149 of IPC. Although, in Musa Khan's case, the Court has clearly taken slightly different view. In this regard, it may also be borne in mind that scope and object of Section 149 as laid down in Ramchandran's case and other cases referred above, the Court therein was examining the case on merits. It was at the stage of final hearing of appeal by the Supreme Court. At present, we are concerned with the limited plea of suspension of sentence and releasing him on bail. Considering the nature of evidence qua the applicant, we do not think that in the circumstances of the case, to ignore or to brush aside the assertion of absence of overt act by the applicant would be just and proper. In this regard, reference may be made to Shah Kantilal Bhimchand & Others' case - 2002 (1) GLH 315. In its short order / judgment, in Paras.4 and 5, it was held;
"4. Mr.Sushil Kumar, learned senior counsel then submitted that the appellant in this case was convicted without ascribing any particular overt act to him. In other words his contention is that merely because of this presence in the assembly he too has been tagged with the rest of the members and convicted and sentenced to life imprisonment. On the said submission we issued notice to the respondent - State. We requested the standing counsel for the State of Gujarat to check up the Trial Court judgment and submit before us whether any particular overt act has been attributed to the appellant. She fairly conceded today that no such overt act is seen ascribed to the appellant.
5. In the above situation, we persuade ourselves to suspend the sentence passed on the appellant, We do so. We direct the appellant to be released on bail on executing a bond for such amount s the Trial Judge may fix with two solvent sureties to the satisfaction of the Trial Judge."Page 16 of 21
R/CR.MA/404/2015 ORDER 20.1 The other comments on the evidence of PW-157 and PW-236 are referred hereinabove.
21. As to the third point, viz., gravity of offence, there cannot be two opinions on this. The incident, viewed as whole, is shockingly grave. It is too brutal to believe as a real and too disturbing to claim sympathy.
22. As to the last point, viz., desirability of releasing the accused on bail after he has been convicted for committing of serious offence, we may say that no undesirable circumstance or consequence that may ensue on suspension of sentence, were put forward by the prosecution. Further, it may be stated that broadly, cases may be of two types; in one type of cases, for instance, the Court would adopt liberal approach for considering such application, particularly when evidence is not satisfactory. The applicant would invite the Court to appreciate prima facie the material relied on by him, in the background of plea of suspension of sentence. If the applicant is able to make out prima facie case questioning the finding of guilt against him then, order of suspension would be passed and bail would be granted. In considering bail plea at the appellate stage, one important distinguishing feature with reference to trial court considering bail application may be pointed out. Unlike the trial court, evidence not to be recorded by the appellate court. That being so, no question of tampering with evidence for consideration of plea of bail at the appellate stage. What weightage should be given to this aspect depends on facts and circumstances of each case. One of the main considerations before the appellate court is, Page 17 of 21 R/CR.MA/404/2015 ORDER whether the trial court has committed an error in appreciating the evidence on record? Such error should appear prima facie. On the other hand, if there is reliable material and admissible evidence on record against the applicant that prima facie points towards the guilt of the applicant then, the Court would be reluctant to grant suspension of sentence once the conviction is recorded because cover of presumption of innocence enjoyed by the accused then stands shaken and damaged by the proof of guilt. Thus, it depends on type of case in which the given case falls. In the present case, as observed above, applicant has made out arguable case. Therefore, this consideration for suspension of sentence in view of the nature of evidence on record is possible to read in favour of the applicant.
23. It is now well settled that successive bail application for suspension of sentence is not impermissible. Reference may be made to Takhatsinh's case - (2001) 10 SCC 463 (Para.2). Further, it may be stated that this Court has allowed the application of suspension of sentence filed by the co- accused i.e. Mayaben Kodnani. The prosecution has linked the name of the present applicant with said Mayaben. It is the say of the prosecution that applicant was her P.A. / Pati (?). The applicant cannot be faulted for placing reliance on the order passed by this Court in case of Mayaben Kodnani.
24. We owe brief explanation since the applicant's earlier application for suspension of sentence was rejected on merits by this Court after considering all submissions of applicant by a detailed order. It appears that earlier weaknesses in the evidence of PW-157 and PW-236 - so far as the applicant is Page 18 of 21 R/CR.MA/404/2015 ORDER concerned - was not pointed out before the Court. More than that the order of this Court was carried in Appeal and before the Supreme Court, same was withdrawn with liberty to move the High Court for suspension of sentence at appropriate time. Thereafter, Mayaben Kodnani's application for suspension of sentence was allowed by this Court (Criminal Misc. Application No.10567 of 2014 in Criminal Appeal No.1713 of 2012). It is the say of the prosecution that present applicant is PA of Mayaben. Allowing Mayaben's application for suspension of sentence by elaborate order can be advanced as a ground for filing fresh application. Further, in Musa Khan's case (supra), presence of A8 in the mob was established by evidence of PW-7 and also by other witnesses (Para.9), however, considering the circumstances of the case, the Supreme Court was pleased to allow the Appeal of A8 and acquit him. It appears that earlier attention of this Court was not drawn to Musa Khan's case. For these reasons, we deem it just and proper to reconsider applicant's prayer for suspension of sentence.
25. To recall, the applicant is in custody for over 5 years and 6 months. It is not in dispute that initially, the name of the applicant was not disclosed and it was disclosed after 6 years after transfer of investigation by the Supreme Court. Considering the facts and circumstances of the case, applicant's application for suspension of sentence deserves to be allowed and the same is hereby allowed. The conviction and sentence dated 31.8.2012 recorded by the learned Special Judge in Sessions Case No.270 of 2009 is hereby ordered to be suspended qua the present applicant till the final hearing of appeal and the applicant is hereby ordered to be released Page 19 of 21 R/CR.MA/404/2015 ORDER on bail on his executing a bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with two solvent sureties of the like amount to the satisfaction of the lower Court on condition of observing all other usual conditions along with following conditions that he shall;
(a) not take undue advantage of his liberty or abuse his liberty.
(b) not to try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner.
(c) maintain law and order.
(d) surrender his passport, if any, to the lower court,
within a week and if he does not possess any pass-
port, then he shall make declaration to that effect before the trial court;
(e) If during the pendency of the criminal appeal any change in his residential address, permanent or temporary, takes place, then the applicant shall intimate the same to the trial Court as well as the concerned Police Station.
26. Bail before the trial court having jurisdiction.
27. Rule is made absolute. Direct service is permitted.
FURTHER ORDER
Page 20 of 21
R/CR.MA/404/2015 ORDER
Learned Senior Advocate Mr.P.G.Desai, who does not have any instructions in writing, requests for stay of this order for a reasonable time, as SIT may decide to challenge this order before the Hon'ble Apex Court.
Taking into consideration, the contents of the order, this Court is of the opinion that no case is made out for suspending this order. Hence, the request is rejected.
(RAVI R.TRIPATHI, J.) (R.D.KOTHARI, J.) vipul Page 21 of 21