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Gujarat High Court

Sandeepsingh Narsingh Lalsingh Rajput ... vs State Of Gujarat on 18 September, 2020

Author: Gita Gopi

Bench: Gita Gopi

      R/CR.A/662/2020                                  IA JUDGMENT




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           1 of 2020
             In R/CRIMINAL APPEAL NO. 662 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ SANDEEPSINGH NARSINGH LALSINGH RAJPUT (KHUSHWA) Versus STATE OF GUJARAT ================================================================ Appearance:

MR ASHISH M DAGLI for the PETITIONER(s) No. MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MS. JUSTICE GITA GOPI Date : 18/09/2020 IA JUDGMENT RULE. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent State.
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R/CR.A/662/2020 IA JUDGMENT
1. By way of this application filed under section 389 of the Criminal Procedure Code, the applicants have prayed to suspend the sentence imposed upon the applicants, original accused Nos.1 & 3, vide judgment and order dated 06.01.2020 passed by the learned City Sessions Judge, Court No.17, Ahmedabad in Sessions Case No.362 of 2018 whereby, the applicants, original accused Nos.1 and 3, have been convicted for the offences punishable under sections 307, 452, 323, 120B, 294B and 114 of the Indian Penal Code (IPC) read with sections 25(1B)(A) and 27 of the Arms Act and under section 135 of the Gujarat Police Act.

For conviction under section 307 read with section 120B and 114 IPC, both the applicants have been sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.25,000/- each and in case of default, simple imprisonment for 6 months;

For conviction under section 452 read with section 114 IPC, rigorous imprisonment for 7 years with fine of Rs.15,000/- each and in case of default, simple imprisonment for 5 months;

For conviction under section 294B read with section 114 IPC, rigorous imprisonment for 3 months with fine of Rs.1000/- each and in case of default, simple imprisonment for 1 month;

For conviction under section 25(1B)(A) of the Arms Act read with sections 114 and 120B IPC, rigorous imprisonment for 3 years with fine of Rs.10,000/- each and in case of default, simple imprisonment for 5 months;

For conviction under section 27 of Arms Act read with sections 114 and 120B IPC, rigorous imprisonment for 3 years with fine of Rs.10,000/- each and in case of default, simple Page 2 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT imprisonment for 5 months; and For the offence under section 37(1) read with section 135(1) of the Gujarat Police Act and sections 114 and 120B IPC, rigorous imprisonment for 1 year with fine of Rs.1000/- each and in case of default, simple imprisonment for 1 month.

All the sentence were ordered to run concurrently and the sentence already undergone by the accused were given set-off.

2. Mr. A. M. Dagli, learned advocate for the applicants, submitted that the original complainant had solved some family property related dispute of original accused No.1. The original complainant is engaged in the business of sales and purchase of fire-arms. As per the prosecution case, some scuffle had taken place between the original complainant and the accused persons; however, said alleged incident had not taken place inside the office premises of the original complainant. It is alleged that original accused No.1 had picked up a country made pistol and thereafter, fired it at the original complainant, in which incident, the original complainant allegedly sustained a gun-shot injury on his ears. It was submitted that the alleged incident is said to have taken place in Bapunagar area of Ahmedabad City. If the original complainant had really sustained any such gun-shot injury on his ears, then would have immediately taken treatment to any nearby hospital situated in Bapunagar area and would never travel up to Shahibagh area, which is at a distance of about 4½ kilometres from Bapunagar, for taking treatment. It was submitted that the reason why the complainant had travelled up to the hospital situated at Shahibagh for treatment in an allegedly injured condition is that the hospital belonged to a close family friend of Page 3 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT the complainant. By doing so, the complainant knew that he would be able to concoct a story against the accused persons in connivance with his Doctor friend. The prosecution has not produced any medical case papers regarding the treatment taken by the complainant at the said hospital. If the complainant had sustained any such injury in the alleged incident and had taken any treatment at any hospital, then the prosecution would not have hesitated to produce the relevant medical case papers of the complainant on record of the trial Court. However, the very fact that the complainant has not produced any medical case papers regarding the treatment, if any, taken by him at the hospital at Shahibagh establishes that the complainant had not sustained any injury in the alleged incident. The Doctor has deposed that while treating the complainant, he had removed some "foreign body" from the head of the complainant; however, no such "foreign body" was handed over to the Investigating Officer. Therefore, the evidence of said Doctor ought not to have relied upon as he is a near friend of the complainant and therefore, an interested witness. The ballistic report does not disclose the use of any such arms.

2.1 Learned advocate for the applicant further submitted that the entire story put-forth by the complainant is false and concocted, which is established from the evidence of the complainant himself. It was urged that from the cross- examination of the witness, it is established that the witness had not noticed the occurrence of the alleged incident. The evidence of the complainant does not get any corroboration from the evidence of the Investigating Officer Further, the CCTV footage collected by the Investigating Officer does not disclose the use of Page 4 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT any fire-arms by the accused persons. The lack of medical and scientific evidence shows lapses in the investigation and the applicants deserve to be granted the benefit of such defective investigation.

2.2 It was further submitted that the accused persons have already undergone imprisonment for the punishment under the Arms Act and there is nothing on record which may corroborate the alleged use of fire-arms inasmuch as no entry or exit wounds have been found on the person of the complainant.

2.3 In support of his submissions, learned advocate for the applicants placed reliance upon the decision of the Apex Court in the case of Kashmira Singh v. The State of Punjab, (1977) 4 SCC 291 to submit that since the applicants have already undergone considerable period of imprisonment and their appeal is not likely to be decided in the near future, the sentence imposed upon the applicants may be suspended pending the appeal. It was also urged that applicant No.2 was on bail during the trial and considering the fact that there is no specific allegation against the applicant No.2, his case for bail deserves consideration.

3. Mr. Pranav Trivedi, learned Additional Public Prosecutor, has produced written objections to the application filed by the applicants seeking suspension of sentence. It was submitted that the accused persons carried the motive to commit the alleged crime since the applicant No.1 had animosity with the complainant. The said aspect is evident from the depositions of the complainant and of Yogendra Subedarsinh Chauhan (PW-7). It is established that there was a dispute with regard to the shop Page 5 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT owned by applicant No.1 and the applicant No.1 believed that the raid conducted at the shop of applicant No.1 was due to the complainant. Thus, the accused persons carried the motive to commit the alleged offence.

3.1 Learned Additional Public Prosecutor further submitted that the presence of the applicants at the scene of offence and the role played by the applicants is established from the evidence on record in the form of testimony of the complainant - Uday Virsinh Bhadoriya at Exhibit-112 and of Mahesh Nathuram Chauhan (PW-10). Insofar as the presence of applicant No.2 is concerned, the same is established from the fact that the said accused was nabbed from the scene of offence while the other accused persons were able to flee from the place. The said aspect is established from the evidence of Puransinh Bhadoriya (PW-

11). Thus, the presence and role played by both the accused persons is established beyond doubt.

3.2 It was further submitted by the learned Additional Public Prosecutor that the complainant had taken treatment from the hospital at Shahibagh since the Doctor - Rupkumar Manilal Agrawal (PW-8) was their family Doctor for several years and not on account of any other reason. The attention of the Court was drawn to the history given by the complainant before the Doctor as also the testimony of the Doctor (PW-8) to submit that the same supports the case of prosecution. In the history before the Doctor, the injured has clearly stated about the incident and also about the factum of armed assault by the applicants. This witness (PW-8), being an independent witness, there is no reason to disbelieve the evidence led by him.

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R/CR.A/662/2020 IA JUDGMENT 3.3 Learned Additional Public Prosecutor drew attention of the Court to the panchnama of scene of offence (Exhibit-36) to point out that the mobile phone as well as the weapon used in the commission of the alleged offence, have been found from the scene of offence. The panch witness (PW-1) has supported the case of the prosecution. Further, the panchnama of recovery of DVR of CCTV footage (Exhibit-33) also supports the prosecution case. The testimony of the forensic expert - Mukesh Kanubhai Rana (PW-7) and Dharmendra Govindbhai Shah (PW-9) also support the case of the prosecution. It was, accordingly, urged that the sentence imposed upon the applicants may not be suspended pending the appeal considering the totality of facts and the evidence on record.

4. Heard learned advocates on both the sides and perused the material on record.

5. The law on the subject is well-settled. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence but that discretion has to be exercised judiciously, depending on the facts and circumstances of each case. While considering the issue of suspension of sentence, each case has to be considered on the basis of the nature of offence, the manner in which the occurrence has taken place and whether in any manner bail granted earlier had been misused. In a catena of decisions, the Apex Court has held that the significance and sweep of Article 21 make the deprivation of liberty of an individual a matter of grave concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community Page 7 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT good and State necessity spelt out in Article 19. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in the Apex Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years.

6. While considering an application under section 389 CrPC, the issue to be considered by the appellate Court is whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which, ultimately, the accused has fair chances of acquittal. This has to be done in the backdrop that the appellate Court cannot appreciate the evidence while considering an application under section 389 CrPC but, can look into the reasoning assigned by the trial Court while recording the conviction.

7. In the present case, the prosecution has examined Dr. Roopkumar Manilal Agrawal (PW-8), who had given treatment to complainant - Udayvir Brahmajitsinh Bhadoriya (PW-22) on 19.11.2017 while the complainant was brought to "Chandramani Hospital" situated in Shahibagh area of Ahmedabad City in an injured condition. If the testimony of this witness (PW-22) is Page 8 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT examined, it would be evident that this witness has family relations with the injured, i.e. the complainant herein. Though it is claimed by the prosecution that the complainant had sustained severe head injury in the alleged incident and had taken treatment from this witness (PW-8), no medical case- papers, viz. CT Scan reports, etc., have been produced on record by the prosecution. The Doctor (PW-8) has also stated that "multiple foreign bodies" were recovered from the injured portion of the body of the complainant during his treatment; however, no such "multiple foreign bodies" as recovered are produced by the Investigating Officer during the course of trial.

8. Dr. Dharmendra Govindlal Shah (PW-9) is the witness who was discharging duties as Scientific Officer, Computer Forensic Division, Gandhinagar and who had examined the DVR seized from the scene of offence. The testimony of this witness does not inspire confidence inasmuch as the witness himself has admitted that he has not examined the contents of the DVR in its entirety. The witness has admitted that he has not examined all the individuals seen present in the office of the complainant, as appearing in the CCTV footage.

9. The prosecution has placed heavy reliance upon the evidence of Mahesh Nathiram Chauhan (PW-10), who was serving at "Uday Gun House" at the time when the alleged incident took place. However, this witness appears to be an interested witness. In fact, from the evidence of this witness, it appears that the muddamal articles, viz. DVR, country-made pistol, used cartridges and mobile phone, were handed over by this witness to the police at about 10:30 PM, which casts serious Page 9 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT doubts about the genuineness / authenticity of the said articles. Further, the presence of this witness (PW-10) at the scene of offence at the time of commission of the alleged incident also appears to be doubtful.

10. The original complainant, Udayvir Brahmajitsinh Bhadoriya, has been examined as PW-22. Prima facie, the evidence led by this witness also does not appear to be credible. The original complainant states that he owns a shop in the name of "Uday Gun House" and is a dealer in weapons. This witness has admitted that the Doctor (PW-8), in whose hospital he had taken treatment immediately after the alleged incident, is his family friend, which casts serious doubts about the entire prosecution story. The Investigating Officer, Narendrakumar Nanjibhai Parghi (PW-24) has not collected hand-wash control sample of the applicants. The evidence of the Investigating Officer (PW-24) high-lights several contradictions in the evidence of the complainant (PW-22) before the trial Court and the averments made in the complaint.

11. The applicant No.2 herein was on bail during the trial, which factor shall work in favour of applicant No.2 while considering this application. Having gone through the entire evidence on record, this Court is of the view that the applicants herein are entitled to get their order of sentence imposed by the trial Court suspended, pending disposal of the appeal.

12. For the foregoing reasons, the application is allowed. The order of sentence and fine imposed upon the applicants vide judgment and order dated 06.01.2020 passed by the learned City Sessions Judge, Court No.17, Ahmedabad in Sessions Case Page 10 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020 R/CR.A/662/2020 IA JUDGMENT No.362 of 2018 shall stand suspended pending hearing and final disposal of the captioned appeal and the applicants are ordered to be released on bail on furnishing personal bond of Rs.15000/- (Rupees fifteen thousand only) by each of the applicants with solvent surety of the like amount by each of the applicants to the satisfaction of the trial Court and on the following conditions; 

      (a)     shall maintain law and order.
      (b)     shall not indulge in any activity leading to breach of
      public peace and tranquility.
      (c)     shall not leave the State of Gujarat without prior
      permission of this Court.

Rule is made absolute. Registry to send a writ of this order to the jail authority forthwith by E-mail / Fax.

(GITA GOPI, J) NEHA GUPTA Page 11 of 11 Downloaded on : Sat Sep 19 03:08:17 IST 2020