(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) Heard Mr.J.M.Panchal learned advocate, with Mr.M.I.Shaikh learned advocate for the applicants and Mr H.K.Patel learned APP for the State.
The applicants, five in number, have preferred this application for suspension of sentence imposed upon them pursuant to the order dated 8.9.2011 passed by the learned 5th Addl. Sessions Judge, Veraval, camp at Una in Sessions Case No. 8/2009, pending the appeal.
The present applicants were charged with the offence punishable under section 302 and 498A read with sec. 34 of IPC. Learned Addl. Sessions Judge has acquitted all the accused from the offence punishable under section 498A IPC, however all are convicted for the offence under section 302 read with sec. 34 of IPC and are sentenced to undergo life imprisonment. The conviction and sentence awarded by the learned Addl. Sessions Judge is challenged by the present applicants in Criminal Appeal NO. 1282/2011, which is admitted by this Court on 10.11.2011.
Learned counsel for the applicants, on instructions, stated that he does not press this application qua applicants no. 1 and 2. He further states that he may not press this application qua applicant no. 3 - Fatimaben w/o Dilavar Hussain Maulabax (mother-in-law) at this stage, however, liberty may be granted to move this Court after reasonable time. This application, therefore would stand disposed of qua applicants nos. 1, 2 and 3, reserving liberty qua applicant no. 3, as stated above.
Pending the appeal, this application deserves consideration, qua applicants no. 4 and 5, i.e. Sherbanu d/o Dilavar Hussain Maulabax and Shayrabanu d/o Dilavar Hussain Maulabax, since it is indicated that conviction of offence under sec. 302 of IPC is to be viewed independent of the offence under section 498A, since is held to be not proved, coupled with the fact that the case mainly rests on circumstantial evidence and further that the condition of the victim at the time of recording of dying declaration also needs closure scrutiny. Considering the totality of the facts, this court is inclined to exercise discretion, qua applicants no. 4 i.e. Sherbanu D/o Dilavar Hussain Maulabax and applicant no. 5 i.e. Shayrabanu D/o Dilavar Hussain Maulabax.
Hence, the following order:
The substantive sentence imposed on applicant no. 4 - Sherbanu D/o Dilavar Hussain Maulabax and applicant no. 5 - Shayrabanu D/o Dilavar Hussain Maulabax, vide order dated 8.9.2011 passed by the learned Addl. Sessions Judge, Veraval camp at Una in Sessions Case No. 8/2009, is suspended pending the Criminal Appeal No. 1282/2011, and it is, ordered that they shall be released on bail on their furnishing personal bond of Rs. 5000/-each, with one surety of the like amount, on condition that they shall surrender their passport, if any, before the trial Court.
Rule is discharged qua applicants no. 1, 2 and 3 and rule is made absolute qua applicants no. 4 and 5 to the above extent.
Direct service is permitted.
[RAVI R. TRIPATHI, J.] [PARESH UPADHYAY, J.] mandora/ Top