R/CR.A/1475/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2019
In
R/CRIMINAL APPEAL NO. 1475 of 2019
SAJAN AJMALBHAI KHIMANI
Versus
STATE OF GUJARAT
Appearance:
MR ASHISH M DAGLI for the PETITIONER(s) No.
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No.
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 09/08/2019
IA ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this application under section 389 of the
Code of Criminal Procedure, 1973 (for short, “the
Code”), the applicantconvict seeks suspension of
the execution of the sentence awarded by the
learned Special (POCSO) Judge, Jamnagar, vide
judgment and order dated 06.07.2019 passed in
Special (POCSO) Case No.42 of 2016, whereby the
applicant has been convicted for the offence
under sections 324, 363, 366, 376(2)(i, m, d),
506(2) read with section 34 of Indian Penal Code
and sections 4, 6, 10 and 12 of the Protection of
Children from Sexual Offences Act, 2012 (for
short, “the POCSO Act”).
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2. Mr. A.D. Shah, learned counsel appearing with
Mr. Ashish M. Dagli, learned advocate for the
applicant, submitted that a conviction can be
based on direct or circumstantial evidence and
that it can never be based on corroborative
statements, in the nature of previous statements
of witnesses. It was submitted that previous
statement made by a witness can be relied upon to
corroborate the testimony of such witness.
However, when there is no substantive evidence of
any prosecution witness and conviction is
recorded on the basis of corroborative evidence,
which is not genuine, then the same would be
contrary to criminal jurisprudence, as laid down
by the Supreme Court in a catena of decisions.
This is exactly what the trial court has done in
the present case.
2.1 It was submitted that, in this case, the
prosecutrix, namely, PW 9, has not supported the
prosecution case and has been declared hostile.
It was submitted that PW 8 – Shobhnaba Hematsinh
Vadher, who is the mother of the prosecutrix, has
also not supported the prosecution case and has
been declared hostile. It was submitted that none
of the witnesses have deposed in favour of the
prosecution so as to connect the applicant with
the offence in question.
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2.2 The attention of the court was invited
to the findings recorded by the trial court to
submit that the trial court has recorded that the
prosecutrix and her mother have not supported the
prosecution case and that they have done this on
account of extreme fear and threat by the
accused. Referring to the testimonies of the said
witnesses, it was submitted that there is nothing
on record to show that the witnesses have deposed
under fear or threat nor has the trial court put
any questions during the course of recording
their evidence to the effect as to whether they
were under any kind of fear or threat for not
supporting the prosecution case.
2.3 It was pointed out that the trial court
has placed reliance upon the testimonies of PW 12
– Mulrajsinh Mahendrasinh Jadeja, who had
registered the first information report, PW 13 –
Faridaben Bhurabhai Gaganiya, who is the P.S.O.
who had recorded the complaint and PW 14 –
Laxmansinh Punjabhai Vaghela, who is the
Investigating Officer. It was submitted that the
trial court has based the conviction on the
testimonies of the aforesaid three police
officers. It was submitted that the previous
statements of the witnesses, in the nature of
medical history or statements under section 164
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of the Code can be used for the purpose of either
contradicting or corroborating a witness and that
the statements under section 161 of the Code can
be used only for the purpose of contradicting the
witness; however, here, in this case, the trial
court has held that the Investigating Officer has
proved the statements of witnesses under section
161 of the Code and based on the same has
recorded the conviction.
2.4 Reliance was placed upon the decision of
the Supreme Court in the case of Vijender v.
State of Delhi, 1997 Supreme Court Cases
(Criminal) 857, wherein the court has held thus;
“25. We are constrained to say that the above
observations have been made by the trial
Judge casting away the basic principles
regarding reception and appreciation of
evidence, misreading the evidence. So far as
the report of P.W. 5 before the Vigilance
Cell is concerned the trial Judge failed to
notice that it did not contain the names of
the above two appellants, namely, Mukesh and
Devinder @ Bhinder; and on the contrary
therein the names of two other persons,
namely, Jeetu and Pappu find place as the
miscreants. Indeed, in none of the three
reports that P.W. 5 lodged with the police he
mentioned the names of the above two
appellants. We hasten to add that even if he
had so named it could not have been treated
as legal evidence for reasons earlier
mentioned. Then again, the trial Judge could
not have relied upon the knowledge of P.W, 5Page 4 of 9
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R/CR.A/1475/2019 IA ORDERthat the appellants were the miscreants as he
was not a witness to the kidnapping and P.W.
4 did not state that he saw the miscreants
and, for that matter, that the appellants
were the miscreants. The reliance of the
trial Judge on the result of investigation to
base his findings is again patently wrong. If
the observation of the trial Judge in this
regard is taken to its logical conclusion it
would mean that a finding of guilt can be
recorded against an accused without a trial,
relying solely upon the police report
submitted under Section 173 Cr.P.C, which is
the outcome of an investigation. The result
of investigation under Chapter XII of the
Criminal Procedure Code is a conclusion that
an investigating Officer draws on the basis
of materials collected during investigation
and such conclusion can only form the basis
of a competent Court to take cognizance
thereupon under section 190(1)(b) Cr.P.C. and
to proceed with the case for trial, where the
materials collected during investigation are
to be translated into legal evidence. The
trial Court is then required to base its
conclusion solely on the evidence adduced
during the trial; and it cannot rely on the
investigation or the result thereof. Since
this is an elementary principle of criminal
law, we need not dilate on this point any
further. Equally unsustainable is the trial
Judge’s reliance upon the statement made by
Jeetu (P.W. 2) before the police in view of
the express bar of section 162 Cr.P.C., which
we have discussed earlier. Indeed, we find,
the trial Judge placed strong reliance on the
purported statement made by Jitender before
the police that they (the appellants) were
hiding and that (hey were involved in
kidnapping and murder of Khurshid to convict
them (emphasis supplied).”
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It was submitted that thus, the judgment of
the trial court is based upon totally
inadmissible evidence and that no conviction
could have been based upon such evidence; that
the applicant has a prima facie case in his
favour and hence, the court may exercise
discretion in favour of the applicant and suspend
the execution of the sentence awarded by the
trial court pending the appeal and release him on
bail.
3. On the other hand, Ms. C.M. Shah, learned
Additional Public Prosecutor, has supported the
prosecution case and has submitted that the
prosecutrix had lodged a complaint before the
police alleging the commission of offence under
section 376 IPC as well as other provisions. It
was submitted that, however, the prosecutrix has
not supported the prosecution case and has been
declared hostile. It was submitted that
considering the gravity of the offence in
question, the trial court has rightly convicted
the applicant and other accused for the offence
in question and that, having regard to the facts
and circumstances of the case, this court may not
exercise discretion in his favour.
4. This court has considered the submissions
advanced by the learned advocates for the
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respective parties and has perused the record and
proceedings, as pointed out to the court and has
perused the findings recorded by the trial court
in the impugned judgment. On a perusal of the
findings recorded by the trial court, prima
facie, it appears that the trial court has based
the conviction on the testimonies of the three
police officers, namely, the police officer who
had registered the first information report (PW
12), the police officer who had recorded the
complaint (PW 13) and the Investigating Officer
who had recorded the statements of the witnesses
(PW 14). The impugned judgment and order of
conviction, therefore, appears to be based upon
the statements made by the witnesses under
section 161 of the Code before the Investigating
Officer, which, according to the trial court,
have been proved through his testimony.
5. In view of the above, it appears that the
applicant has a prima facie case in his favour
and an arguable case in the appeal. The court is,
therefore, inclined to exercise discretion in his
favour.
6. For the foregoing reasons, the application
succeeds and is, accordingly, allowed. The
execution of the sentence awarded by the learned
Special (POCSO) Judge, Jamnagar, vide judgment
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and order dated 06.07.2019 passed in Special
(POCSO) Case No.42 of 2016, is hereby kept in
abeyance qua the applicant, Sajan Ajmalbhai
Khimani, till the final hearing of the appeal.
The applicant be released on regular bail on his
executing a personal bond of Rs.10,000/ (rupees
ten thousand only) with one solvent surety of the
like amount to the satisfaction of the trial
court, subject to the following conditions:
(a) he shall not take undue advantage of his
liberty or abuse his liberty;
(b) he shall maintain law and order;
(c) he shall surrender his passport, if any,
to the lower court within a week and if he
does not possess any passport, then he shall
make a declaration to that effect before the
trial court;
(d) he shall furnish the present address of
his residence to the Investigating Officer
and also to the Court at the time of
execution of the bond and shall not change
the place of residence without the prior
permission of the trial court.
7. Bail bond before the trial court having
jurisdiction.
8. It is made clear that any observations made
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while deciding this application are merely prima
facie observations made for the purpose of grant
of bail and shall have no bearing on the final
outcome of the appeal.
9. Records and proceedings to be sent back to
the trial court for the purpose of preparation of
paper book. Rule is made absolute accordingly.
Direct service is permitted today.
(HARSHA DEVANI, J)
(VIRESHKUMAR B. MAYANI, J)
PRAVIN KARUNAN
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