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R/CR.

MA/10567/2014

ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 10567 of 2014
In
CRIMINAL APPEAL NO. 1713 of 2012
=========================================
MAYABEN SURENDRABHAI KODNANI....Applicant
Versus
STATE OF GUJARAT & 1....Respondents

=========================================
Appearance :
MR S V RAJU, SENIOR COUNSEL ASSISTED BY MR MITESH R AMIN,
ADVOCATE for the Applicant.
MR PRASHANT DESAI, SENIOR COUNSEL ASSISTED BY MR AY KOGJE AND
MR GAURANG VYAS, SPECIAL PUBLIC PROSECUTORS for the Respondents.

=========================================
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 30/07/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)

RULE.

Notice of rule has been waived by learned

counsel appearing for the respondents.

We have heard Mr. S.V. Raju, learned Senior Counsel


assisted by Mr. Mitesh R. Amin and Mr. Hardik Dave, learned
counsel appearing for the applicant, Mr. Prashant G. Desai, learned
Senior Counsel assisted by Mr. A.Y. Kogje and Mr. Gaurang Vyas,
learned Special Public Preosecutors appearing for the respondent
No.2 and Mr. K.N. Shastri, learned counsel appearing for the
victims.

2.

This application for suspension of sentence and for

grant of regular bail pending her appeal has been filed by the
applicant. The applicant was an accused in Sessions Case No.243

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ORDER

of 2009 and in fact, there were 8 Sessions Cases tried. They were
all clubbed together and the leading Sessions Case was treated to
be Sessions Case No.235 of 2009.

The applicant has been

convicted for the different offences as mentioned below :Conviction


under Section
of IPC

Sentence

Fine

Default
Sentence

295 r/w 120-B

2 Years RI

200/-

15 days RI

427 r/w 120-B

2 years RI

200/-

15 days RI

435 r/w 120-B

2 years RI

200/-

15 days RI

436 r/w 120-B

2 years RI

1000/-

30 days RI

440 r/w 120-B

5 years RI

500/-

20 days RI

153 r/w 120-B

1 Year RI

200/-

7 days RI

153-A r/w 120-B

3 years RI

300/-

20 days RI

153-A (2) r/w


120-B

3 years RI

300/-

20 days RI

323 r/w 120-B

6 months RI

200/-

7 days RI

324 r/w 120-B

1 year RI

200/-

15 days RI

325 r/w 120-B

7 years RI

500/-

20 days RI

326 r/w 120-B

10 years RI

1000/-

30 days RI

307 r/w 120-B

10 years RI

1000/-

30 days RI

302 r/w 120-B

18 years RI

5000/-

40 days RI

3.

The appellant had filed an appeal under Section 374 of

the Code of Criminal Procedure, 1973. Though the appeal was filed
in November 2012, it was not filed along with any regular bail
application.

A regular bail application was filed being Criminal

Misc. Application No.6023 of 2013 wherein there were office


objections, but it could not be removed by the applicant due to
which it stood dismissed without reference to the Court as per the
order dated 12.6.2013 passed by the Division Bench.

4.

The applicant was sick and, therefore, she applied for

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ORDER

temporary bail which was granted by the Division Bench on


12.11.2013 for a period of three months.

The applicant again

applied for temporary bail on the same ground of medical illness,


but the temporary bail application was not granted by the Division
Bench and by its order dated 6.2.2014, it directed that the
applicant can be treated at the Civil Hospital run by the State
Government as according to the Division Bench, the treatment
facility was available in the Civil Hospital and the temporary bail
application was refused.

5.

This order dated 6.2.2014 was challenged by the

applicant before the Apex Court. The Apex Court by its judgment
dated 24.2.2014 dismissed the Special Leave Petition (Criminal)
No.3528 of 2014. However, liberty was granted to the applicant
for filing appropriate application for grant of regular bail before the
High Court.

Therefore, the applicant has applied for grant of

regular bail.

6.

Learned counsel for the appellant has urged that the

appellant had been convicted by the Special Court on the


presumption of her participation in the riots though the evidence
on record proves otherwise.

He has further submitted that the

applicant is innocent and was not involved in the alleged crime. It


is further alleged that the applicant is not guilty of any conspiracy.
He has further urged that she is seriously sick and Certificate
dated 14.7.2014 issued by Chairman & C.D.M.O. / Medical
Superintendent of Civil Hospital, Ahmedabad is on the record
wherein it is stated that he had examined the applicant and she is
suffering from the diseases mentioned in the Certificate and further
it has been observed in the certificate that the applicant is not
responding to the treatment and there was no improvement.

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7.
Counsel

ORDER

On the other hand, Mr. Prashant Desai, learned Senior


and

Special

Public

Prosecutor

appearing

for

the

respondents has vehemently urged that looking to the heinous


crime wherein large number of people had died and were injured,
properties were destroyed and ransacked, the Court should not be
liberal in grant of bail application and should view the matter very
strictly and looking to the seriousness of the offence in which the
applicant has been found to be guilty, she is entitled for no
indulgence and her bail application is liable to be rejected. The
argument of Mr. Desai had been adopted by Mr. K.N. Shastri,
advocate for the victims.

8.

An incident had taken place of killing of Kar Sevaks at

Godhra in Sabarmati Express on 27.2.2002 while the Train was


coming from Ayodhya halted at Godhra.

After the Godhra train

carnage, wide spread and large scale communal riots triggered of


in the State of Gujarat. In Naroda Patiya on 28.2.2002, 96 human
lives were lost which includes missing persons, 125 persons were
injured, property of crores of rupees were damaged, destroyed and
ransacked. The group of 8 Sessions Cases is popularly known as
Naroda Patiya Case, had taken place in the aftermath of the
destruction of the Babri Masjid in Ayodhya, Uttar Pradesh.
According to the prosecution case, the victims mainly hailed from
Muslim community.

9.

The Apex Court decided the difference of opinion

between two Honble Judges of the Apex Court on the question as


to whether the communal riot cases require a different standard of
proof than ordinary criminal cases.

In paragraph 43 of its

judgment in Kailash Gour and others v. State of Assam, (2012)

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2 SCC 34, the Apex Court held as under :43.

an accused is presumed to be innocent till

he is proved guilty beyond a reasonable doubt is a


principle that cannot be sacrificed on the altar of
inefficiency, inadequacy or inept handling of the
investigation by the police. The benefit arising from
any such faulty investigation ought to go to the
accused and not to the prosecution. So also, the
quality and creditability of the evidence required to
bring home the guilt of the accused cannot be
different

in

cases

where

the

investigation

is

satisfactory vis-`-vis cases in which it is not. The


rules of evidence and the standards by which the
same has to be evaluated also cannot be different in
cases depending upon whether the case has any
communal overtones or in an ordinary crime for
passion, gain or avarice.

10.

Therefore, the law is settled that an accused is

presumed to be innocent till he is proved guilty beyond reasonable


doubt and if there is a faulty investigation or inefficiency,
inadequacy or inapt handling of the investigation by the Police,
then benefit of such faulty investigation has to go to the accused
and not to the prosecution and the prosecution cannot escape from
proving the case against the accused by leading credible evidence
which is required to be established even in an ordinary crime.

11.

Heinousness of crime or cruelty in its execution

howsoever abhorring and hateful cannot reflect in deciding the


guilt. Each knot of the criminological chain has to be proved,
beyond shadow of doubt to bring home the guilt. Any crack or
loosening in it weakens the prosecution. Each link, must be so
consistent that the, only conclusion which must flow is that the

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accused is guilty. Credibility of witnesses has to be measured with


same yardstick, whether, it is an ordinary crime or a crime
emanating due to communal frenzy. Law does not make any
distinction either in leading of evidence or in its assessment.

12.

The law does not make any distinction between the

representatives of the people, M.L.A., Minister and others, accused


of criminal offences. Neither they can claim any privilege nor can it
be granted by any Court of Law.

The law treats all equally.

In

order to do justice between the parties, the Court must examine the
materials brought on record in each case on its own merits.
Marshalling and appreciation of evidence must be done strictly in
accordance with law. Presumption of innocence is a human right.
Such a legal principle cannot be thrown aside under any situation.

13.

Now, this brings us to the argument of learned counsel

for the applicant about the sickness of the applicant.


certificate

dated

14.7.2014

issued

by

In the

Chairman

&

C.D.M.O./Medical Superintendent, Civil Hospital, Ahmedabad, it is


observed as under :-

She is suffering from


(1)
Intestinal tuberculosis with I.B.S. &
gastro reflux disease and with severe weight
loss. She is on anti tuberculosis drugs and
high protein diet.
(2)
Major depressive disorder with suicidal
ideation, severe sleep disturbance and she
was given two electro convulsive therapy
under general anesthesia.
(3)

Low back pain with bilateral lower limbs

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radiculopathy with generalized osteoporosis


and she is on injection teriparatide 0.08 ml per
day subcutaneously and other osteoporotic
drugs.
(4)

Vertigo and peripheral neuritis.

(5)
She is not responding to treatment and
no improvement is observed.
14.

Learned counsel appearing for the applicant has placed

reliance on the decision of the Apex Court in the case of Anil Ari v.
State of West Bengal, (2009) 11 SCC 363 wherein the Apex
Court has directed release of the accused though he was convicted
for life imprisonment looking to his age.

15.

Learned counsel appearing for the applicant has

submitted that the applicant is aged 59 years and she is a senior


citizen and she is having serious illness which is certified by
Chairman & C.D.M.O./Medical Superintendent, Civil Hospital,
Ahmedabad. Therefore, looking to her medical condition as she is
not responding to the treatment of the Civil Hospital, she requires
specialized treatment by private Doctors for which she is entitled
for grant of regular bail.

16.

So far as the merits of the matter is concerned, the

learned counsel appearing for the applicant has pointed out that
the applicant has been convicted with the aid of Section 120-B of
the Indian Penal Code and she has been acquitted for the offences
charged against her under Sections 143 to 149 and allied offences
of the Indian Penal Code.

He has argued that the evidence on

record is suggestive that her active participation was there at the


place of incident. Still however, she has been acquitted by the
learned Special Judge by not considering her as a member of

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ORDER

unlawful assembly. She has been convicted with the aid of Section
120-B of the Indian Penal Code.

Mr. Prashant Desai, learned

Senior Counsel appearing for the respondents was asked whether


apart from the evidence that the applicant arrived at the place of
incident in her Car, is there any evidence with regard to prior
concert or meeting of mind with the mobs which has taken the law
in its own hands, the reply is in negative.

Mr. Desai has tried to

persuade us to believe that whenever riots were erupted in the


entire State, on being arrived at the place of incident and on
arriving there and inciting to the mob, itself attracted Section 120B of the Indian Penal Code.

Suffice it to say that inspite recording findings regarding


her presence at the scene of occurrence, the learned Special Judge
acquitted her from all the charges levelled against her as being a
member of unlawful assembly and convicted her for hatching
conspiracy with thousands of people who were members of a mob.
However, at this stage, whether to suspend the sentence and
release the accused on bail, we would not be justified in reappreciating the entire evidence on record. At this stage, we have
to bear in mind the nature of evidence, consideration of such
evidence by the learned Special Judge for the purpose of prima

facie satisfaction of the validity of the conclusions, apart from


other relevant factors relating to the incident. Therefore, we deem
it proper not to go into the details regarding the conclusion arrived
by the learned Special Judge while determining the factors which
led the learned Special Judge to believe the applicant as a
conspirator.

17.

We have fully considered the evidence placed before us

wherein almost 11 witnesses are involving the present applicant


and showing her presence at the place of incident. But we are

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ORDER

considering the application of the applicant for suspension of


sentence and grant of bail pending appeal. Therefore, we deem it
proper not to enter into a great detail of the evaluation of the
evidence on the record as it will be seen at the time of final
hearing of the appeal.

18.

Though learned counsel for the applicant has tried to

demonstrate before us serious contradictions and improvements,


but we are not entering into the same because this will be argued
and decided at the time of final hearing of this appeal.

19.

For the reasons recorded above, we are of the

considered opinion that the applicant is entitled for suspension of


sentence. Accordingly, the present application stands allowed. The
conviction and sentence dated 31.8.2012 recorded by the learned
Special Judge in Sessions Case No.243 of 2009 is hereby
suspended pending appeal and the applicant is hereby ordered to
be released on bail on her executing bond of Rs.1,00,000/- (Rupees
One Lac only) with two surety of like amount to the satisfaction of
the concerned Court and subject to the condition that she shall
surrender her passport, if any, before the Trial Court.

20.

Bail before the Trial Court having jurisdiction.

21.

Rule is made absolute. Direct service permitted today.

(V.M.SAHAI, J.)

(R.P.DHOLARIA, J.)
Savariya

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