Gujarat High Court
Rabari Bhaveshbhai Motibhai vs State Of Gujarat on 13 September, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Rajendra M. Sareen
R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2021
In R/CRIMINAL APPEAL NO. 1169 of 2021
==========================================================
RABARI BHAVESHBHAI MOTIBHAI Versus STATE OF GUJARAT ========================================================== Appearance:
LD.SR.ADV. MR I H SYED WITH MR SHAAN M MUNSHAW for the PETITIONER(s) No. LD.SR.ADV. MR YOGESH LAKHANI WITH MR ASHISH M DAGLI for the RESPONDENT(s) No. MS CM SHAH, ADDL.PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 13/09/2021 IA ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. Rule, returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of the respondent-State.
2. This is an application seeking suspension of sentence under Section 389 of the Code of Criminal Procedure in wake of the pendency of the appeal till final hearing.Page 1 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021
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3. The applicants-appellants have challenged the judgment and order of Sessions Court passed on 09.07.2021 in Sessions Case No.55 of 2017, where the Sessions Court, Mehsana had punished the applicants to undergo the simple imprisonment for the period of 05 years and fine of Rs.1,000/- and in default of payment of fine to undergo further imprisonment of one month.
4. The applicants were enlarged on bail by this Court prior to the conviction and have not breached any of the conditions accordingly. The large numbers of old appeals are pending before the Court and there is no possibility of the appeals to be proceeded for final hearing in a near future. As the total period of conviction is of 05 years, Page 2 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 they need this Court to show the indulgence and allow them the regular bail during the pendency of this appeal.
5. It is further their say that the conviction is for the bailable offences and not the heinous crimes against the society. It is also their say that they are permanent residence of District Mehsana and have the roots in the society therefore, also they be enlarged. It is the say of the applicants that the applicants were said to be the part of unlawful assembly under Section 141 and the common object of the unlawful assembly under Section 149 of the Indian Penal Code was to commit the offence under Page 3 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 Section 435 and 427 and therefore also they be released.
6. The learned senior counsel, Mr.I.H.Syed appearing with learned advocate, Mr.S.M.Munshaw has taken this Court through the averments made in the FIR. The evidence adduced on the basis of investigation carried out and the oral as well as documentary evidences. He has vehemently argued before this Court that only one person has been convicted under Section 302 and he was the one who has been named in the dying declaration by the deceased Liluben, who suffered the injuries at the hands of accused No.1-Kanubhai. The dying declaration had been recorded on 11.02.2017 and the one given before the Page 4 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 doctor also. There is an involvement of applicant No.1 and not the rest. 6.1 According to the learned senior counsel, Mr.I.H.Syed, all the applicants were ordered to be released on bail by this Court vide order dated 18.07.2017 and they have continued to enjoy this freedom with certain stringent conditions imposed by the Court. They were not permitted to enter into the limits of Mehsana Taluka for a period of 06 months.
6.2 According to the learned senior
counsel, Mr.I.H.Syed, when there
are multiple dying declarations,
the Court shall need to consider
all of them in relation to the
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surrounding circumstances and as
can be seen from the material on the record, it is quite obvious that the doctor has also noted specifically the name of one of the accused and not of the present applicants, no role is attributed to any of them so far as the question of murder is concerned. In a police statement recorded of Liluben also, it is quite clear that she had implicated accused No.1-Bhavesh Rabari as someone who has caught hold of and inflicting of the blow was only by Rabari Dinesh Kantilal. It is, therefore, urged that the FIR which has been recorded at 19:50 hours for the incident which took place in the Page 6 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 after-noon at around 14:20p.m., first time the names of these persons come at 19:50 hours. If at all, there was a common object to kill Jayeshbhai and not Liluben; according to the learned senior counsel, Mr.I.H.Syed, there is no appreciation of evidence oral as well as documentary, as can be noticed from the decision of the Court and the cause of the death also does not in any manner involve nor connect these persons. The case being arguable till the matter is decided, the plea of regular bail should be considered by the Court.
7. Learned APP on behalf of the State has seriously questioned and challenged the grant of any relief on the ground that Page 7 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 most of these applicants have many antecedents and any release will result into the adding of more criminal cases. The report from Police Inspector, Mehsana Taluka Police Station also further says that after they were granted the bail against three of accused namely, Dinesh Motilal Rabari, Bhavesh Motilal Rabari and Rabari Sedhabhai Naagjibhai, the FIR being II- C.R.No.267 of 2018 has been registered in Mehsana Taluka Police Station against these persons, which is pending in the Court and the adjournment was on 18.09.2021.
8. Learned senior counsel, Mr.Yogesh Lakhani appears with learned advocate, Mr.Ashish Dagli for the complainant also has resisted this application Page 8 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 seriously. It is urged that the appeal for enhancement of punishment in case of these applicants has already been filed by the private complainant and which has been admitted by the Court. The trial Court has overlooked the provisions of Section 149 and the established principles of law in that respect. In that eventuality, they have been convicted only for the period of 05 years instead of awarding of punishment for the life. This being the case, the Court needs to regard their antecedents qua admission of enhancement of appeal and the past animosity between two parties and all other circumstances. He has also further urged that the grant of bail at the time of pendency of the trial would Page 9 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 need different considerations than the grant of regular bail by suspending the sentence and order of conviction. The presumption of innocence shall not be available to the applicants accused once convicted by the competent court and therefore, he has urged that no leniency be shown by the Court. He has relied on the list of cases lodged against these applicants.
Rabari Bhaveshbhai Motibhai Sr.No. C.R.NO.WITH POLICE STATION OFFENCE PUNISHABLE UNDER 1 CR.No.I-183/2011 Mehsana Taluka Sections Police Station 143,147,148,149,323,50 4 of Indian Penal Code and Section 135 of G.P.Act 2 CR No.I-10/2013 Mehsana Taluka Police Sections 366, 380, 114 Station of Indian Penal Code and 135 of the GP Act 3 C.R.No.II-03 of 2017 Mehsana Taluka Sections 323, 504, Police Station 506(2), 114 of IPC 4 C.R.No.I-28 of 2017 Mehsana Taluka Section 302, 143, 147, Police Station 148, 149, 323, 427, 435, 506(2) of I.P.C. and Section 135 of G.P.Act.
5 C.R.No.I-267 of 2018 Mehsana Taluka Sections 323, 504, Police Station 506(2), 114 of I.P.C. and Section 135 of G.P. Page 10 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021
6. C.R. NO.II-95 of 2018 Mehsana A Section 504, 506(2), 114 Division Police Station of I.P.C.
7. C.R.No.II-21 of 2011 Mehsana Taluka Section 323, 504, Police Station 506(2), 114 of IPC and Section 135 of G.P.Act.
8. C.R.No.II-105 of 2018 Mehsana Taluka Section 323, 504, Police Station 506(2), 114 of IPC Rabari Maganbhai Amibhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-183 of 2011 Mehsana Taluka Section 143, 147, 148, Police Station 323, 504 of I.P.C. and Section 135 of G.P.Act 2 C.R.No.I-10 of 2013 Mehsana Taluka Section 366, 380, 114 of Police Station IPC 3 C.R.No.I-28 of 2017 Mehsana Taluka Section 302, 143, 147, Police Station 148, 149, 323, 427, 435, 506(2) of IPC and Section 135 of GP Act.
Rabari Dhirabhai Somabhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-183 of 2011 Mehsana Taluka Section 143, 147, 148, Police Station 323, 504 of IPC and Section 135 of GP Act 2 C.R.No.II-95 of 2018 Mehsana Taluka Section 504, 506(2), 114 Police Station of IPC 3 C.R.No.I-28 of 2017 Mehsana Taluka Section 302, 143,147, Police Station 148, 149, 323, 427, 435, 506(2) of IPC and Section 135 of GP Act Page 11 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 Rabari Jigarbhai Maganbhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-183 of 2011 Mehsana Taluka Sections 143, 147, 148, Police Station 323, 504 of IPC and Section 135 of GP Act 2 C.R.No.I-227 of 2011 Mehsana Taluka Section 354, 504, 114 of Police Station IPC 3 C.R.No.I-28 of 2017 Mehsana Taluka Sections 302, 143, 147, Police Station 148, 149, 323, 427, 435, 506(2) of IPC and Section 135 of GP Act.
Rabari Rameshbhai Somabhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-183 of 2011 Mehsana Taluka Section 143, 147, 148, Police Station 323, 504 of IPC and Section 135 of GP Act.
2. C.R.No.I-28 of 2017 Mehsana Taluka Section 302, 143, 147, Police Station 148, 149, 323, 427, 435, 506(2) of IPC and Section 135 of GP Act.
Rabari Sedhabhai Nagjibhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-28 of 2017 Mehsana Taluka Sections 302, 143, Police Station 147148, 149, 323, 427, 435, 506(2) of IPC and Section 135 of GP Act.
2. C.R.No.I-267 of 2018 Mehsana Taluka Sections 323, 504, Police Station 506(2) of IPC and Section 135 of GP Act.
Page 12 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 Rabari Kanubhai Nagjibhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-28 of 2017 Mehsana Taluka Sections 302, 143,147, Police Station 148, 149, 323, 427, 435, 506(2) of the IPC and Section 135 of GP Act Rabari Bharatbhai Khodabhai Sr.No. C.R.No. With Police Station Offence punishable under
1. C.R.No.I-183 of 2011 Mehsana Taluka Sections 143, 147, 148, Police Station 323, 504 of IPC and Section 135 of GP Act 2 C.R.No.I-10 of 2013 Mehsana Taluka Section 366, 380, 114 of Police Station IPC 3 C.R.No.II-03 of 2017 Mehsana Taluka Section 323, 504, Police Station 506(2), 114 of IPC 4 C.R.No.I-28 of 2017 Mehsana Taluka Sections 302, 143, 147, Police Station 148, 149, 323, 427, 435, 506(2) of IPC and Section 135 of GP Act.
5 C.R.No.I-227 of 2011 Mehsana Taluka Section 354, 504, 506(2) Police Station and 114 of the IPC 6 C.R.No.II-21 of 2011 Mehsana Taluka Section 323, 504, Police Station 506(2), 114 of IPC and Section 135 of GP Act 7 C.R.No.II-105 of 2008 Mehsana Taluka Sections 323, 504, Police Station 506(2) and 114 of the IPC
9. In rejoinder, the learned senior counsel, Mr.I.H.Syed has urged that most of the cases have been concluded Page 13 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 and one or two cases without very serious crime are pending, however, that ipso facto should not be the reason for the Court to deny the bail when the conviction is only for the period of 05 years. Again, against the complainant and his associates also, various cross complaints are pending and therefore, that aspect need not be lost sight of.
10. Having heard the learned senior counsels on both the sides and also having considered the entire material on the record, it is at the outset needed to be mentioned that the appeals have been filed by both, the State of Gujarat as well as the private complainant questioning the wisdom of Page 14 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 the trial Court of acquitting the present applicants for the offences under Sections 302 r/w Sections 114 and 149 of the Indian Penal Code. The conviction under Section 302 and punishment is only against accused No.1
- Dinesh Motilal Rabari whereas the present applicant No.1 Bhavesh Motilal Rabari and others have been acquitted of the serious charges and have been punished for the offences under Sections 435 read with Section 149 of the Indian Penal Code for the period of 05 years.
11. It is a matter of record that the appeal has been admitted for the Court having found a reason to admit after looking at the material and hearing the Page 15 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 parties. It is undoubtedly presently the conviction under Sections 427, 435, 143, 147, 148 and 144 of the Indian Penal Code. The Court has believed the common object and forming of unlawful assembly under Section 149 of the Indian Penal Code.
12. This Court also needs to bear in mind the fact that the version given by the injured deceased, who survived for about 20 days, within half an hour and the complaint has been given about 04 hours time. The seriousness of injuries had required the attendance of the injured deceased firstly. She was an aged woman, who had sustained severe injuries and therefore, a reference of such blow having been inflicted by the Page 16 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 accused No.1 cannot prima facie be regarded without considering the overall facts and circumstances and the evidence that had been adduced by the prosecution. The FIR is a mere launching pad from where the investigation would initiate, it is eventually the evidence oral as well as documentary collected and then presented before the Court, which shall need to be regarded. Naming the applicant-accused in the FIR by the injured eyewitness and the version of the deceased before the police also on the very day in the FIR clearly reflect the names of all these persons, the Court, therefore shall be also conscious of the two decisions of the Apex Court rendered in case of Page 17 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 Jagbirsingh vs State (NCT of Delhi), reported in (2019) 8 SCC 779, and in case of Dayaram & Another vs. State of Madhya Pradesh, reported in (2020) 13 SCC 382, where the role of the Court at the time of multiple dying declarations is addressed by the Court and in the decision of of the Apex Court rendered in case of Lakshman Singh vs. State of Bihar (Now Jharkhand) in Criminal Appeal Nos.630 & 631 of 2021, where appreciation at the time of the employment of Section 149 of the Indian Penal Code is in detailed considered. One para will suffice what needed to be conveyed by the Apex Court in this regard.
"9."Force" is defined under Section 349 IPC. As per Section 349 IPC, "force" means "A person is said to use force to another if he causes motion, Page 18 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 change of motion, or cessation of motion to that other......."
As observed hereinabove, all the accused persons were the members of the unlawful assembly and the common intention was "to snatch the voters slips and to cast bogus voting". They used force and violence also, as observed hereinabove. It is the case on behalf of the accused that there is no specific role attributed to them for the offence of rioting under Section 147 IPC. However, as observed hereinabove and as held by this Court in the case of Abdul Sayeed vs. State of MP, where there are large number of assailants, it can be difficult for witnesses to identify each assailant and attribute specific role to him. In the present case, the incident too concluded within few minutes and therefore it is natural that exact version of incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by eyewitnesses. Even otherwise, as held by this Court in the case of Mahadev Sharma (supra), every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. In paragraph 7, it is observed and held as under:
"7. Section 146 then defines the offence of rioting. This offence is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such assembly uses force or violence. It may be noticed here that every member of the unlawful assembly is Page 19 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 guilty of the offence of rioting even though he may not have himself used force or violence. There is thus vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly.
Thus, once the unlawful assembly is established in prosecution of the common object, i.e., in the present case, "to snatch the voters list and to cast bogus voting", each member of the unlawful assembly is guilty of the offence of rioting. The use of the force, even though it be the slightest possible character by any one member of the assembly, once established as unlawful constitutes rioting. It is not necessary that force or violence must be by all but the liability accrues to all the members of the unlawful assembly."
13. With this, the Court also needs to regard that the parameters which were available at the time of grant of regular bail before the conviction at the time of pendency of the trial cannot be roped in so far as the convicts are concerned, the presumption of innocence will not be available. Page 20 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 Once the trial Court on the strength of documents as well as oral version held them guilty. Noticing the number of cases against each applicant as has been presented, even if, some of them have ended into giving of benefit of doubt or acquittal, it has to be remembered that even after this Court had granted regular bail, the case is registered against the three of the accused and two of whom are the applicants before this Court in this matter, the last date of hearing of which was 18.09.2021 and then, such matter is still pending.
14. After saying all these, we are quite conscious that presently the applicants are the convicts of 05 years Page 21 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 under Sections 427 and 435 read with Section 149 of the Indian Penal Code and unless this Court in the final hearing appreciate the evidence and also consider the judgment of the trial Court in connection with the appreciation as well as documentary evidences, so far as the provisions of Section 302 read with 149 of the Indian Penal Code is concerned, the applicants are the suspects and they have been given the benefit of doubt for now by the concerned trial Court. Therefore, while striking balance instead of grant of regular bail, we deem it appropriate to allow the applicant Nos.2 & 3 and 5 to 8, temporary bail. They are to be released for the period of 12 months by way of temporary bail and as it would Page 22 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 be required to monitor their conduct closely rather than granting them regular bail during the pendency of the appeal and also fix the hearing of appeals on an early date within this period of twelve (12) months. 15. So far as the applicant Nos.1 and 4 are concerned, even after this Court had granted regular bail during the pendency of the appeal, then have indulged into the act of criminality as is quite apparent from II-C.R.No.267 of 2018, on 16.12.2020 this FIR is investigated and the matter is pending under Section 323, 504 and 114 of the Indian Penal Code. Those who have no regards for the Court of law and their mandates and who also attempted to take Page 23 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 the law in their hands when during the pendency of the very trial from which conviction has culminated, the Court is disinclined to consider their cases as there is no guarantee of their not indulging into the similar activities while on bail.
16. As mentioned above, when the Court is required to consider the regular bail or suspension of sentence pending the appeal, the considerations must not be abstract and should be founded on existing material facts and circumstances, each applicant since is involved in the past more than one crimes.
17. As could be noticed from the Page 24 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 submissions made by Mr. Yogesh Lakhani, learned Senior Counsel on a query raised by the Court, the summary filed by the Police at the end of the investigation has not yet been accepted by the Court. Notice served upon the complainant is confirmed. However, both the sides will address the Court later, once the final outcome is received and if not challenged before the Higher Forum, these two applicants viz. Bhaveshbhai and Sendhabhai will be permitted to approach this Court for the purpose of making a request for the release pending the appeal. Rule is discharged qua applicant Nos.1 and 4. 18. The applicant Nos.2 & 3 and 5 to 8 are thus ordered to be released on Page 25 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 temporary bail for the period of 12 MONTHS by executing a personal bond of Rs.50,000/- each (Rupees Fifty Thousand only) and two sureties of the like amount by each of them to the satisfaction of the trial Court and subject to the conditions that they shall:
[a] not enter into the limits of Mehsana District;
[b] not to contact any prosecution witnesses nor any kind of untoward incident would be tolerated. Any involvement in contacting the witnesses or any relatives or indulging in any criminal act would automatically cancel their temporary bail. Any Page 26 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021 R/CR.A/1169/2021 IA ORDER DATED: 13/09/2021 action if is noticed which is contrary to the law shall be also reported to this Court;
[b] not take undue advantage of liberty or misuse liberty;
[c] surrender their passports, if any, to the trial Court within a period of one week from the date of their release;
[d] not leave the State of
Gujarat without prior permission
of the Sessions Judge concerned;
[e] at the time of execution of
bond, furnish their latest and
permanent address to the
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Investigating Officer, and also to the Court, and shall not change the residence without prior permission of this Court.
19. Present Application is disposed of accordingly. Rule is made absolute with the above terms. Direct service is permitted.
(SONIA GOKANI, J) (RAJENDRA M. SAREEN,J) M.M.MIRZA Page 28 of 28 Downloaded on : Fri Oct 08 05:22:51 IST 2021