Gujarat High Court
Nasirbhai @ Dilu Abdulbhai @ ... vs State Of Gujarat on 13 December, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, A.G.Uraizee
R/CR.MA/29411/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
29411 of 2017
In
CRIMINAL APPEAL NO. 451 of 2017
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NASIRBHAI @ DILU ABDULBHAI @ DILAVARBHAI KHOKHAR &
1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
NANAVATI & CO., ADVOCATE for the Applicant(s) No. 1 - 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 13/12/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. In this application filed under Section 389 of the Code of Criminal Procedure, 1973, prayer is to suspend sentence and grant bail pending the above criminal appeal filed against the judgment and order dated 31.12.2016 passed by the learned 3rd Additional District Judge, Ahmedabad [Rural] in Sessions Case No.70 of 2014 convicting the applicants-original accused nos.2 and 3 under Section 302 and 498A of the IPC and sentencing them to undergo rigorous life imprisonment and to pay fine of Rs.2,000/- in default to further undergo imprisonment for 2 years and one year RI and to pay fine of Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Dec 13 23:01:19 IST 2017 R/CR.MA/29411/2017 ORDER Rs.500/- or in default to undergo 15 days imprisonment respectively and the sentences were ordered to run concurrently.
2. So far as co-convict and original accused no.4 is concerned, same prayer for suspension of sentence and grant of bail in Criminal Misc. Application (for suspension of sentence) No.27724 of 2017 in the present appeal was preferred in which case of the prosecution in the backdrop of arguments canvassed by learned counsel appearing for the applicant and learned APP was recorded and submissions made therein, which reads as under:-
"2. Learned counsel for the applicant has invited our attention that as per the case of prosecution all members of family were involved in the incident which took place at 11:45 pm on 07.05.2014 in which initially quarrel had taken place amongst family members with regard to allegation of accused No.1 having illicit relationship with accused No.4 and deceased was in habit of discussing such relationship of accused No.1 and accused No.4 in the public and according to accused they were unnecessarily blamed and, therefore, she was asked to tender apology to which she refused and accused No.1 - husband instigated by accused Nos.2 and 4, took out a plastic carboy containing kerosene, poured it over the body of his wife, ignited a match stick and set her ablaze and as a result of which she died on 16.05.2013. Initially, offence under Section 307 read with Section 498(A) of the IPC was registered and upon death of the injured, Sections 302 and 114 of IPC came to be added. It is further submitted that in addition to the complaint filed by the injured - wife of accused No.1, there was dying declaration recorded by the Executive Magistrate on 08.05.2013 and other were declarations made by the injured before her relatives, however, the learned trial Judge convicted and sentenced all accused persons for the offences under Sections 302 and 498A of IPC believing the case of the prosecution as proved beyond reasonable doubt.
3. At this stage of suspension of sentence and grant of bail, our attention is drawn by learned counsel for the applicant to relevant evidence containing the paper book and dying declaration recorded by the Executive Magistrate Exh.40 and it Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Dec 13 23:01:19 IST 2017 R/CR.MA/29411/2017 ORDER is submitted that the declarant referred to the discussion with her husband, mother-in-law, father-in-law, elder sister-in-law / Rubina / applicant herein and alleged that they remained mute spectators at the time of pouring kerosene and igniting the match stick by the accused No.1. Further, She stated that all the accused persons caused mental as well as physical cruelty to her, but at the same time, she stated that her mother-ion- law had defended her. While recording the above statement, her mental fitness, including the capability to make or declare statement was certified by the concerned Executive Magistrate and in the complaint filed, the aspect of instigation by the accused persons other than husband does not appear on record and the declaration of victim before the medical officer at the hospital where she was taken for treatment, her version was of receiving burn injuries by her husband only. It is further submitted that though grounds are mentioned in memo of appeal filed while challenging the conviction so recorded, at this stage, this court may consider the dying declaration recorded by the Executive Magistrate in juxtaposition to oral declaration of the victim while she was alive, the complaint and also declarations made before her relatives.
4. As against the above, learned APP appearing for the respondent State of Gujarat would contend that the applicant and other accused were not only present but had instigated accused No.1 to commit or to play overt act of pouring kerosene, igniting match stick and setting the victim ablaze. It is further submitted that the victim narrated clear roles of the present applicant as well as other accused persons even in complaint filed and declarations made before her elder sister Salmaben and brother about the incident. Thus, victim was consistent about roles of all accused and that no attempt was made either to rescue the victim or to prevent accused No.1 from committing crime and on the contrary instigated to set her ablaze in the light of other corroborative material viz. declarations of the victim in the complaint, before her relatives, and testimonies recorded in the court are sufficient enough to establish the guilt of all the accused persons. Even at this stage, the applicant is not entitled for any relief as prayed for. It is further submitted that in a case like this, discretionary relief could not be exercised in favour of the applicant or alternatively it is submitted that appeal be heard as expeditiously as possible."
3. It is accordingly submitted that dying declaration, Exh.40, recorded during 5.30 to 6.05 a.m. of 8th May 2013 by Executive Magistrate reveal that during late night hours, Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Dec 13 23:01:19 IST 2017 R/CR.MA/29411/2017 ORDER husband, mother-in-law, father-in-law, elder brother-in-law and elder sister-in-law were discussing and victim suspected affair of her husband with elder sister-in-law followed by a quarrel, which was culminated in husband of the victim pouring kerosene over her body and lighting a matchstick and set her ablaze. At that time, elder brother-in-law, Nasir, father-in-law, Dilavar, and elder sister-in-law, Rubina (co-convict, who came to be considered for regular bail after suspension of sentence) remained mute spectators. The victim was inflicted mental and physical torture. However, mother-in-law tried to save her. As against above, complaint recorded at 9 a.m. in which the victim elaborated active role of the convicts other than her husband to the extent of abusing her and instigating husband and so is the version before her relatives, who arrived during night hours of 8th May 2013. When dying declaration was recorded, the declarant was conscious and well oriented and a question was put-forth whether she wants to declare anything than what she had stated, to which it was replied "No". Prima facie, keeping it open to appreciate the conviction based on evidence as a whole including the dying declaration recorded by Executive Magistrate, complaint and oral statement before relatives at the stage of final hearing but keeping in mind law laid down by the Apex Court where multiple dying declarations appear on record, the dying declaration which inspires confidence of the Court appreciating such evidence most may be considered along with other evidence, at this stage of considering this application of suspension of sentence and grant of bail, we are inclined to exercise discretion by considering above evidence, particularly, declaration made before the Executive Magistrate in which no overt act as such appear against the present applicants and we are inclined to Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Dec 13 23:01:19 IST 2017 R/CR.MA/29411/2017 ORDER grant bail to the applicants, by suspending the sentence during the pendency of appeal.
4. The present application is allowed. The applicants are enlarged on bail on their furnishing a solvent surety of Rs.10,000/- (Rupees Ten thousand) each and personal bond of the like amount on usual terms and on the following further conditions:-
[a] The applicants shall not take undue advantage of her liberty or abuse their liberty.
[b] The applicants shall 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 their passport, if any, to the lower Court, within a week.
5. In the meanwhile, the substantive sentence shall remain under suspension. Bail bond before the Trial Court. Rule is made absolute.
6. The observation herein above shall have no bearing on the case at the stage of final hearing.
(ANANT S.DAVE, J.) (A.G.URAIZEE,J) *malek Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Dec 13 23:01:19 IST 2017