2008 Supreme(Guj) 252

GLR 2008 (3) 2345
MR.JUSTICE J.R.VORA and MR.JUSTICE J.C.UPADHYAYA
HARSHADBHAI BHARATBHAI RAMAVAT -Appellant
Versus
STATE OF GUJARAT -Respondent
Misc. Criminal Application No. 692 of 2008 in Criminal Appeal No. 106 of 2008
Decided on : 06/08/2008

Whether applicant-accused is entitled to be released on bail suspending sentence pending appeal?

Headnote:Head Note :

       [Indian] Penal Code, 1860(Central Act 45 of 1860) — Sections 306 and 498-A — Criminal Procedure Code, 1973(Central Act 2 of 1974) — Section 389 — Suspension of sentence pending appeal — Release on bail — Scope of — Finding as to — It is the settled law that for suspending execution of sentences, Court is required to look to the nature of accusation made against accused, the manner in which the crime is alleged to have been committed, the gravity of offence and desirability of releasing the accused on bail — Court is not required to re-appreciate the evidence at the stage but merely to look prima facie case appearing from record — In the case Court considered the evidence recorded during trial-Court also gone through the reasons assigned by the trial Judge for causing to the conclusion in respect of cruelty — Considering that all Court found it difficult to hold as argued on behalf of accused-appellant that there was no evidence in respect of cruelty — Serious crime is alleged against the accused and award of 10 years imprisonment can not be said to be that short sentence as to entitle the applicant accused to release him on bail after suspending the sentence in case of this type — Court accordingly refused any relief at this stage.

       Held :

       It is the settled law that for suspending execution of sentences, the Court will look to the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of offence and the desirability of releasing the accused on bail. It is not necessary at all for the Court to re-appreciate the evidence at this stage, but prima facie, case appearing from the record. This exercise is required to be taken particularly with reference to the contentions raised by learned Counsels for the parties. Convict may point of the glaring infirmities in the prosecution case which would be touching to the vital aspect and the very substratum of the case of the prosecution. Considering, prima facie, such infirmities to be resulting in acquittal, the accused in such appeals, may be admitted to bail, but, however, if the appellate Court is not able to take such a view, the course which appears to be open is to reject the plea of bail after rejecting the request for suspension of sentence. [Para 9]

       Court has in detail gone through the evidence of P.W. 9 Gunvantrai Purshottamdas Acharya, Exhibit-32; Hansaben Gunvantrai, P.W. 10, Exhibit-62; P.W. 11 Swatiben Kishankumar, Exhibit-63; P.W. 14, Jyotiben Rajendrabhai Nimavat, Exhibit-80 and evidence of Jaydevsinh Khengarsinh Chudasama, P.W. 17, Exhibit-84 and other evidences recorded during trial. Court has also gone through the reasons assigned by the Trial Judge for coming to the conclusion in respect of the cruelty, which is established by the prosecution. From the above, Court is unable to take a view as Mr. Raju, Advocate for the applicant submitted that there was no evidence at all in respect of cruelty as envisaged under Section 498-A of the Indian Penal Code. In the year 1997, the marriage of accused No. 1 and Alkaben was solemnized and within eight months she was taken back to Bhavnagar. In the year 2003, after compromise she was taken to Porbandar and again she stayed for sometimes and had returned back to her parents. Again, after compromise, before the incident, she was taken to Porbandar and this incident occurred. Without entering into further merits of the case or appreciating the evidence further, Court come to the conclusion that there is no glaring infirmities in the prosecution case whereby, at this juncture, we come to the conclusion that no case was made out at all by the prosecution of cruelty executed upon the deceased by accused No. 1. Court does not find at this juncture any glaring error in the reasoning of the trial Judge to come to the conclusion. Only because the marriage span is more than 7 years, prosecution is not debarred from establishing cruelty. [Para 10]

       It is also revealed in evidence that accused No. 1 had threatened the deceased that he would cause the legs of her brother broken. Then, again, not once but two/three times, attempts were made by the father of the deceased to settle her at in-laws, but on account of mental cruelty, as envisaged above, it had become impossible for the deceased to stay with in-laws. This can be read from the evidence and the circumstances emerging from this evidence, at least, at this juncture, would not warrant a conclusion tentatively that there is no evidence of cruelty as envisaged by Section 498-A of the Indian Penal Code. Documentary evidence like diary, kept by the deceased is also produced on record.

        [Para 11]

       Reading the evidence of above witnesses as it is and without appreciating the same and after assessing the reasons advanced by the Trial Judge for convicting the accused No. 1, Court does not accept the contentions raised on behalf of the appellant that the cruelty within the meaning of under Section 498-A of the Indian Penal Code could not be established by the prosecution and the reasons assigned and conclusions arrived at by the Trial Judge are without any evidence on record and are erroneous. Serious crime is alleged against the accused and sentence of 10 years imprisonment, cannot be said to be that short sentence as to entitle the applicant accused to release him on bail after suspending the sentence in case of this type and, hence, application deserves to be dismissed. [Para 13]

       Law Laid Down :

       For suspending execution of sentences Court is required to look to the nature of accusation made against accused, the manner in which crime is alleged to have been committed, gravity of offence and desirability of releasing accused on bail.