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2009 Supreme(Guj) 241
2010 (3) GCD 1778 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Rajesh H. Shukla
Sajal Sureshkumar Jain
Versus
State of Gujarat
Criminal Misc. Application No. 12893 of 20081—Decided on 20/04/20092
Appearance :
M.R. Kts. Tulsi, with J.M. Panchal, for the Applicant No. 1.
M.R. Kjpanchal, for the Applicant No. 1.
Mr. Anandjiwala, for the Applicant .
Mr. Susheelkumar, and Mr. S.V. Raju with Ms. Sancheti, for the Applicants.
Mr. K.J. Shethna, with Mr. Amin, for the Applicant.
(in respective applications)
M.R. Sunit S. Shah, P.P with Mr. M.R. Mengdey, App. with M.R. Dipen Desai, App, for the Respondent No. 1 (for State in all the cases).
Point in Issue :
Whether in facts of the case appellants are entitled for suspension of sentences pending appeal.
Headnote:Head Note :
(a) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 389 — Suspension of sentence pending appeal and release of appellant on bail — Valid reasons for — Indicated.
Held :
The valid reasons broadly are classified as under:—
(a) The nature of accusation made against the accused.
(b) The manner in which the crime is alleged to have been committed.
(c) Gravity of offence.
(d) Desirability of releasing the accused on bail after he has been convicted for committing serious offence.
Further while considering the aforesaid relevant factors or valid circumstances, the Court has to keep in mind that the normal practice in such cases is not to suspend the sentence and it is only in exceptional cases the benefit of suspension of sentence can be granted. [Para14]
Head Note :
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 389 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 323/34, 328/34, 342/34, 376(2)(g)/34 — Bombay Prohibition Act — Section 66(1)(b) and 85(1)(3) — Application for suspension of sentence — Conviction for the offences — And also appellant were not on bail pending trial — Scope of — Admittedly the offences are of serious nature and gratuity of the offences is very high — Normal practice in such cases is not to suspend sentence and it is only in exceptional cases the benefit of suspension can be granted — No exceptional circumstances have been placed by appellant before Court and on the contrary Court having considered the relevant factors like the nature of accusation the manner in which the crime is committed, the gravity of offence held that it is not a fit case of exceptional circumstances to release accused on bail pending appeals.
Once a person has been convicted, normally an Appellate Court will proceed on the basis that such person is guilty. The mere fact that during the period of trial, the accused was on bail and there is no misuse of liberty, does not, per se, warrant suspension of execution of sentence and grant of bail. Initial presumption of innocence in favour of the accused and, therefore, is no more available to the applicant. When person is convicted, he cannot be said to be innocent person until the final decision is recorded by the superior Court in his favour.”
The Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder....”. (Emphasis supplied) It has also been observed in some of the cases that in normal practice in such cases, not to suspend sentence and it is only in exceptional cases benefits of suspension can be granted. [Para12]
Once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging “potential criminals”. The society can no longer endure under such serious threats. Courts must hear the loud cry for justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court [Para16]
In the present case, it is not only an offence of rape, but is a case of gang-rape proved before the learned Sessions Judge. Therefore, the nature of accusation made against the accused is very serious and the manner of commission of crime, if to be considered, is apparent from not only the complaint, but also corroborated and strengthened by the documentary evidence as well as by the evidence of witnesses examined by the prosecution in support of the case. [Para17]
Law Laid Down :
Once a person is convicted for an offence of rape he should be treated with heavy hand.
Jayant Patel, J.—As in all the applications for bail pending the appeals, common questions arise for consideration as the appeals are also arising from the common judgement and order of the learned Sessions Judge, they are being considered simultaneously by the present common order.
2. Rule. Mr. Mengdey, learned APP and Mr. Dipen Desai, learned APP waive service of notice of Rule in all the concerned matters.
3. The applicant of Criminal Misc. Application No. 12893 of 2008 is accused No. 4 (for the sake of convenience, he shall be described as ‘A-4’ hereinafter); the applicant of Criminal Misc. Application No. 12897 of 2008 is accused No. 1 (for the sake of convenience, he shall be described as ‘A-1’ hereinafter); the applicant of Criminal Misc. Application No. 13041 of 2008 is accused No. 2 (for the sake of convenience, he shall be described as ‘A-2’ hereinafter); the applicant of Criminal Misc. Application No. 13039 of 2008 is accused No. 3 (for the sake of convenience, he shall be described as ‘A-3’ hereinafter); and the applicant of Criminal Misc. Application No. 13176 of 2008 is accused No. 12 (for the sake of convenience, he shall be described as ‘A-12’ hereinafter) have preferred the present applications under Section 389 of Cr.P.C. for suspension of sentence and for releasing the applicants on bail pending the appeals.
4. It may be recorded that as per the prosecution case, the complaint (Ex. 283) was registered by the deceased - victim, whose English translation from Gujarati language is as under:—
“My name is (the deceased victim) d/o. Bipinbhai Ambalal Joshi, aged 24 years, occupation - service, resident of 10, Indrabaug Society, Behind Panchsheel Bus Stand, Near Ramesh Park, Naranpura, Ahmedabad, mobile number 8616661. Having remained present personally I declare by this complaint, being recorded that I reside along with my parents, brother and sister. I am working at the office known as ‘Job Solution’ situated at Devpath Office, C.G. Road, Ahmedabad.
Yesterday, at about 10:00 p.m. of 31.12.2003 while I was at my residence, a phone call came from my friend residing at Shahibaug area namely Chandan Pannalal Jaiswal (A-3) who told that his party is ready and I should immediately reach to Ashok Palace (the place of incident). Since my elder sister Vaishali was present at the residence, she dropped me at under-bridge on her two wheeler Kinetic from where I rang up Sajal Jain (A-4) residing at Delhi, came from Delhi and told him that I was standing near under-bridge and that he should pick me up. Because of this, within some time a friend of Sajal named Monty whose original name is Sugam Harishnkar Jaiswal (A-1) residing at Kirannagar Society, Dudheshwar known to me by name, came in his Maruti Zen at under-bridge. I sat in his Maruti Zen car who carried me in his car bearing registration No. GJ-1-HB-1267 from under-bridge to Hotel Ashok Palace. At Ashok Palace friend of mine Sajal Jain (A-4) and Chandan Pannalal Jaiswal (A-3) and one Montu (A-12) who too was friend of Sajal and residing at Delhi and Chandan’s brother Mandan Jaiswal (A-2) were present. Chandan told me that his friend would come soon carrying the passes. Sajal Jain and the above named friends sat in room No. 106 of Ashok Palace where Sajal ordered for beer. When beer was brought, I was told by Sajal to consume a little beer. I declined to that and Sajal then asked me “what is the objection as we are to go to party where so many girls would come who also might have consumed.” By saying so and upon persuasion, I consumed one peg of beer. Thereafter, since I declined to consume more beer, Sajal gave me 2.3 slaps and on pressurizing me I was made to take 2-3 more pegs of beer. At this time, Sajal and his friend Montu remained present in the room and others went down. Sajal told me to remove my clothes. I declined and said that I would like to talk to my sister Vaishali. In response to which, Sajal had beaten me by slapping me and Montu went out. Sajal sla
