Gujarat High Court
Rajivbhai vs State on 25 April, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.MA/4876/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4876 of 2011
In
CRIMINAL
APPEAL No. 465 of 2011
=========================================
RAJIVBHAI
BIHARIBHAI ABHANI & 3 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR
KB ANANDJIWALA for
Applicant(s) : 1 - 4.
MR RC KODEKAR, LD. ADDL. PUBLIC PROSECUTOR
for Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/04/2011
ORAL
ORDER
By way of present application, filed under Section 389 of the Code of Criminal Procedure, 1973, the applicants have prayed to suspend the sentence imposed upon them vide order dated 31st March, 2011 passed by the learned Additional Sessions Judge (F.T.C. No.1), Bhavnagar, in Sessions Case No.93 of 2007 and to release the applicants-original accused No.1 to 4 on bail during the pendency of the appeal.
The learned Additional Sessions Judge (F.T.C. No.1), Bhavnagar, by his judgment and order dated 31st March, 2011 convicted the applicants for the offences punishable under Section 306 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of five years, and also imposed fine of Rs.5,000/- to each of the applicants, and in default of payment of fine, sentenced them to undergo simple imprisonment for a further period of one year. The applicants were also convicted for the offence punishable under Section 498(A) of the Indian Peal Code and were sentenced to undergo rigorous imprisonment for a period of one year, and also imposed fine of Rs.1,000/- to each of the applicants, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of 30 days. The applicants were also convicted for the offence punishable under Sections 3 and 7 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for a period of five years, and also imposed fine of Rs.15,000/-, and in default of payment of fine, sentenced to undergo simple imprisonment for a further period of one year.
Heard Mr.K.B. Anandjiwala, learned counsel for the applicants and Mr.R.C. Kodekar, learned Additional Public Prosecutor for the respondent-State.
Mr.Anandjiwala prays to withdraw the present application qua applicant No.1-Rajivbhai Biharibhai Abhani is concerned.
In view of statement made by Mr.Anandjiwala, present application is disposed of as withdrawn qua applicant No.1 is concerned.
Mr.Anandjiwala has contended that evidence recorded under Section 161 of the Code of Criminal Procedure of PW Nos.1, 2 and 4 are here-se evidence. He has also contended that the Supreme Court has considered this issue in AIR 2011 SCC 349. He has further contended that looking to the role played by applicant Nos.2, 3 and 4, prosecution has failed to prove ingredients of Section 107 and 108 of the Indian Penal Code. He, therefore, contended that present application may kindly be allowed and the applicant Nos.2, 3 and 4 may be released on bail during the pendency of appeal.
As against this, Mr.Kodekar, learned Additional Public Prosecutor, has vehemently opposed the present application and contended that applicants are involved in a serious offence. He has contended that the learned Additional Sessions Judge has passed the order after appreciating all the aspects of the matter. He, therefore, contended that present applicant deserves to be dismissed.
I have gone through the papers produced before me as well as the judgment and order of conviction passed by the learned Additional Sessions Judge (F.T.C. No.1), Bhavnagar .
Looking to the facts of the case, I am of the opinion that this is a fit case to suspend the sentence awarded to the applicant Nos.2, 3 and
4. Hence, the present application is hereby allowed. The substantive sentence is suspended qua applicant Nos.2, 3 and 4 pending hearing and disposal of the main appeal and the applicant Nos.2, 3 and 4 are hereby ordered to be released on bail on their furnishing surety of Rs.10,000/- each and a personal bond of the like amount on usual terms and conditions. Rule is made absolute qua applicant Nos.2, 3 and 4 to the aforesaid extent. Rule is discharged qua applicant No.1 is concerned.
Direct Service is permitted.
(Z. K. Saiyed, J) Anup Top