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
NASIRBHAI @ DILU ABDULBHAI @ DILAVARBHAI KHOKHAR
1….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
NANAVATI CO., ADVOCATE for the Applicant(s) No. 1 – 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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
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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
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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,
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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
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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
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