R/CR.

A/2163/2019 IA JUDGMENT DATED: 30/09/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION
(FOR SUSPENSION OF SENTENCE OF CONVICTION)
NO. 2 of 2021
In
R/CRIMINAL APPEAL NO. 2163 of 2019
==========================================================
DINUBHAI BOGABHAI SOLANKI
Versus
STATE OF GUJARAT & OTHERS
==========================================================
Appearance:
MR N. D. NANAVATI, SENIOR ADVOCATE with
MR YASH N NANAVATY, ADVOCATE for the APPLICANT

MR R C KODEKAR, CBI RETAINER COUNSEL &

MR MUKESH G KAPADIYA, SPECIAL PUBLIC PROSECUTOR
for the Respondent No. 2 - CBI

MR BB NAIK, SENIOR ADVOCATE with

MR EKANT G AHUJA, ADVOCATE for the Respondent No. 3 - ‘VICTIM’

MR HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR

for the Respondent No. 1 – STATE OF GUJARAT
==========================================================

CORAM:HONOURABLE MR. JUSTICE PARESH UPADHYAY

and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

Date : 30/09/2021

IA JUDGMENT

(PER : HONOURABLE MR. JUSTICE PARESH UPADHYAY)

1. This is an application for suspension of sentence under

Section 389 of CrPC, pending appeal against conviction,
challenging the common judgment and order dated
11.07.2019 recorded by the Special Judge (CBI), Ahmedabad in
Special CBI Sessions Case Nos. 1 to 3 of 2014. The applicant is
one of the seven persons who were tried by the CBI Court,
principally for having committed an offence punishable under

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section 302 r/w section 120B of IPC. All the accused are
convicted and are ordered to undergo RI for life.

2. The hearing of this application was assigned to this

bench, pursuant to the order of Hon’ble the Acting Chief Justice
(on the Administrative Side of this Court). The matter was
heard on 22.09.2021. During the course of hearing, attention
of the Court was invited to the orders dated 23.08.2021 and
26.08.2021 passed on this application.

3. Heard :- Mr. N.D. Nanavati, learned Senior advocate with

Mr.Yash Nanavati, learned advocate for the applicant (convict),
Mr.Kodekar and Mr.M.G.Kapadiya, learned Special Public
Prosecutor(s) for CBI, and Mr.B.B. Naik, learned senior
advocate with Mr.Ekant G. Ahuja learned advocate for the
‘victim’ - father of the deceased.

4. Mr. N.D. Nanavati, learned Senior advocate with Mr.Yash

Nanavati, learned advocate for the applicant (convict) has
submitted that, the present applicant (convict) was falsely
implicated in this case for political reasons and even if it is not
open to go into that aspect at this stage, in any case the
conviction is unsustainable on more than one counts. It is
submitted that the sentence be suspended and the applicant
be granted bail. In support of these submissions, he has taken
this Court extensively through the material on record. He has
also relied on the following authorities, in support of his
submissions.
(i) 1977 4 SCC 291 – Kashmira Singh Vs. State of Punjab
(ii) 2020 8 SCC 645 – Preet Pal Singh Vs. State of UP & Anr.

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5. Mr.Kodekar and Mr.M.G.Kapadiya, learned Special Public

Prosecutors for CBI, have submitted that the CBI Court has
after full fledged trial convicted the present applicant and it is
not open for this Court at this stage to reappreciate the
evidence to decide whether conviction is rightly recorded or
not. He has taken this Court through the contents of the
affidavit-in-reply dated 26.08.2021. They have also relied on
the following authorities in support of their submissions.

(i) 2018 3 SCC 22 – Datram Singh Vs. State of UP.

(ii) 2004 7 SCC 528 – Kalyan Chandra Sarkar Vs. Rajesh
Ranjan & Anr
(iii) 2020 8 SCC 645 - Preet Pal Singh Vs. State of UP & Anr.

6. Mr.B.B. Naik, learned senior advocate with Mr.Ekant G.

Ahuja learned advocate for the ‘victim’ - father of the
deceased, has submitted that, at this stage this Court can not
reappreciate the evidence. It is further submitted that the CBI
Court has rightly convicted the present applicant and no
interference be made by this Court. He has also taken this
Court extensively through two affidivit-in-replies dated
25.08.2021 and 21.09.2021 filed by him and the material
annexed therewith to contend that, this application be
dismissed. He has also relied on the following authorities, in
support of his submissions.

(i) 2020 8 SCC 645 – Preet Pal Singh Vs. State of UP and Anr.
(ii) 2014 4 SCC 626 – Dinubhai Boghabhai Solanki Vs. State
of Gujarat & Ors. (for transfer of investigation)
(iii) 2018 11 SCC 129 - Dinubhai Boghabhai Solanki Vs. State
of Gujarat & Ors. (for De nevo Trial)

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(iv) 2018 11 SCC 731 – Mansoor Alam Vs. State of UO & Anr.
(v) 2011 4 SCC 596 – Kanaka Rekha Naik Vs. Manoj Kumar
Pradhan.
(vi) 2005 AIR (SC) 1481 – Kishori Lal Vs. Rupa and Co. Ltd.
(vii) 2008 AIR (SC) 2889 – Sidharth Vashisht @ Manu Sharma.
(viii) 2009 4 SCC 376 – Suzanne Lousie Martin Vs. State of
Rajasthan.
(ix) 2002 9 SCC 366 – Ramji Prasad Vs. Rattan Kumar Jaiswal.
(x) 2005 3 SCC 143 – Panchanan Mishra Vs. Digambar
Mishra.

7. Learned advocates for all the parties have relied on the

decision of the Supreme Court of India in the case of Preet Pal
Singh Vs. State of UP reported in (2020) 8 SCC 645. Para : 26
thereof reads as under.

“26. As the discretion under Section 389(1)

is to be exercised judicially, the appellate
Court is obliged to consider whether any
cogent ground has been disclosed, giving rise
to substantial doubts about the validity of
the conviction and whether there is
likelihood of unreasonable delay in disposal
of the appeal, as held by this Court in
Kashmira Singh Vs. State of Punjab and Babu
Singh Vs. State of U.P.”

8. In view of above, it first needs to be examined that, is

there any cogent ground which raises doubt in the minds of
this Court giving rise to substantial doubts about the validity of
the conviction recorded by the CBI Court or that it is ex-facie

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unsustainable. The argument of learned counsel for the CBI

and the victim is accepted to the extent that, the parameters
while exercising powers under section 389(1) of CrPC are
different then the powers under section 439 of CrPC.

9. Before the rival contentions are examined, this court is

conscious of the fact that, this application is for suspension of
sentence and it is not an application for bail pending trial. The
presumption of innocence is not available to the present
applicant, since he is already convicted by the competent
Court and the said conviction stares on the face of the
applicant. It is with this parameter, this application is
considered by this Court.

10. True it is, while undertaking the above exercise,

reappreciation of evidence is not to be done by this Court, but
equally true it is, that an application for suspension of
sentence can not be rejected only on the ground that
competent Court has recorded conviction. Deciding an
application for suspension of sentence under Section 389(1) of
CrPC need not be seen only as exercise of discretion / powers
by the appellate Court, it is also duty cast upon the appellate
Court to see to it, whether continuing the convict in jail, during
pendency of his appeal is justified, if the conviction itself is less
likely to be ultimately sustained. Keeping these parameters /
restrictions in view, this Court has examined the rival
contentions pressed into service on behalf of all the three
sides.

11.1 It is not in dispute that the entire case rests on

circumstantial evidence. Therefore, while examining the

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sustainability of the conviction recorded by the trial court on

the basis of circumstantial evidence, five golden principles
need to be kept in view. Reference in this regard needs to be
made to the decision of the Supreme Court of India in the case
of Sharad Badirchand Sarda Vs. State of Maharashtra, reported
in (1984) 4 SCC 116. Para : 153 thereof is relevant, which
reads as under.

“153: A close analysis of this decision would

show that the following conditions must be
fulfilled before a case against an accused
can be said to be fully established.

(1) the circumstances from which the

conclusion of guilt is to be drawn should be
fully established.

It may be noted here that this Court

indicated that the circumstances concerned
'must or should' and not 'may be'
established. There is not only a grammatical
but a legal distinction between 'may be
proved' and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao
Bobade V. State of Maharashtra where the
following observations were made: [SCC para
19, p.807 : SCC (Cri) p. 1047]

Certainly, it is a primary principle that the

accused must be and not merely may be guilty
before a court can convict and the mental

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distance between 'may be' and 'must be' is

long and divides vague conjectures from sure
conclusions.

(2) the facts so established should be

consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis expect that the accused is guilty,

(3) the circumstances should be of a

conclusive nature and tendency,

(4) they should exclude every possible

hypothesis except the one to be proved, and

(5) there must be a chain of evidence so

complete as not to leave any reasonable ground
for the conclusion consistent with the
innocence of the accused and must show that in
all human probability the act must have been
done by the accused”.

11.2 The above position of law is reiterated by the

Supreme Court from time to time. Reference can also be made
to the decision of the Supreme Court of India in the case of
State of Goa vs. Sanjay Thakran, reported in (2007) 3 SCC 755.
Para : 13 thereof reads as under.

“13. The prosecution case is based on the

circumstantial evidence and it is a well

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settled position of law that when the case

rests upon circumstantial evidence, such
evidence must satisfy the following tests :

1. the circumstances from which an

inference of guilt is sought to be drawn,
must be cogently and firmly established;
2. those circumstances should be of a
definite tendency unerringly pointing
towards guilt of the accused;
3. the circumstances, taken cumulatively,
should form a chain so complete that there
is no escape from the conclusion that
within all human probability the crime was
committed by the accused and none else, and
4. the circumstantial evidence, in order
to sustain conviction must be complete and
incapable of explanation of any other
hypothesis than that of the guilt of the
accused and such evidence should not only
be consistent with the guilt of the accused
but should be inconsistent with his
innocence.”

12. Keeping above principles in view, we have read the

relevant part of judgment of the CBI Court. Though, the
evidences which are considered by the CBI Court are not re-
appreciated by us, at-least how they are analysed and how the
chain of evidences is accepted to have been completed against
the present applicant, is examined by us.

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13. It is a matter of record that, the present applicant was

Member of Parliament (Lok Sabha) at the relevant time
representing the BJP. The incident took place on 20.07.2010. In
the investigation carried out by the Police, the applicant was
not accused. Thereafter the investigation was transferred to
CID (Crime). At that stage also, there was no mention of the
applicant. Then SIT was formed, then also the applicant was
not accused. It is in the year 2013, the investigation was
transferred to CBI and in those circumstances, one person
named Rama Haja (PW – 26) popped up, who was projected as
an employee of the present applicant, who claimed in the year
2013 that in the year 2010, few months before the incident, he
had overheard the present applicant telling others that
something needs to be done qua that man (the deceased). The
theory of hatching conspiracy is attributed to the present
applicant on this basis.

14. It is also a matter of record that the present applicant

was managing one Fisheries Co-operative Society (Moti Sagar
Society). The said witness (PW – 26) was Chairman of another
competing Fisheries Co-operative Society (Bhagyashree
Society) during the period between year 2006 to 2013. In the
cross-examination, even on the face of documents to that
effect, he (PW – 26) deposed that he was not aware whether
he himself was Chairman of that society or not. That is the
credibility of the said witness (PW – 26) and on the basis of the
say of the said witness (PW – 26), who was closely associated
with the rival political party, a sitting Member of Parliament of
BJP was named as a prime accused in the year 2013, by CBI,
alleging that he had hatched conspiracy to murder a person,
which had happened in the year 2010.

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15. In the above context, reference needs to be made to

further affidavit-in-reply dated 21.09.2021 filed on behalf of
the victim – the father of the deceased. Number of documents
are annexed therewith including the say of one of the
prosecution witnesses (PW-48) dated 01.02.2018 before the
presiding judge. Though reappreciation of evidence is not to be
done by this Court, the contention raised on behalf of the
victim himself by filing an affidavit to contest this application,
needs to be answered by this Court. The part of that statement
before the CBI Court is to the effect that (translation from
original version) :- 'in the fight between two political parties
viz. BJP and Congress, the common man like me (the witness)
suffers.' Without mincing words, it is stated by him that the
real fight is between two political parties viz. BJP and Congress.

16. We wanted to avoid going into the above political aspect,

but when the same is pressed into service by filing an affidavit
by the victim to contest this application, we are under
obligation to consider and answer it.

17. Even if the say of PW - 26 is accepted as it is (which can

not be), then also the chain does not travel further. In Para :-
587 of the judgment (at running page 811) the CBI Court inter-
alia records its satisfaction that, two other co-accused viz.
Ghanshyam Solanki and Bhadursinh Vadher had talked inter-se
number of times, on their mobile phones. According to CBI
Court, the present applicant did not satisfactorily explain, why
those two persons were in constant touch. The failure on the
part of the present applicant in that regard is treated as a
circumstance against him by the Court below and the chain is

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accepted to have travelled further against him. We are afraid,

this Court can not approve conviction of any citizen based on
such reasoning, that too which keeps a person behind the bars
for whole of his life. We again record that, we have not
reappreciated the evidence but we only note that, the CBI
Court fell in error by taking into consideration irrelevant
aspects and arrived at the conclusion, where no man with
ordinary prudence would have arrived at, on the basis of
material before it. The conviction of the applicant suffers from
the vice of perversity. This also indicates that the CBI Court
based the conviction in question on assumptions &
presumptions and also conjunctures & surmises. While
recording this, we note that, to arrive at this conclusion,
neither close scrutiny nor scanning of any evidence in detail, is
required.

18. There is one more glaring aspect. The evidence of the

concerned Investigating Officer of CBI (PW-194) at Exh.840
does not say, what is noted by the CBI Court, to base the
conviction. There is substantial difference in, what Rama Haja
(PW – 26) had stated to this witness (PW – 194), according to
both of them, while being in the witness box at different point
of time. This further makes the conviction vulnerable because,
the deposition of these two witnesses not only does not take
the chain further against the applicant, it creates doubt on the
very formation of the chain of circumstances against the
applicant.

19. On conjoint consideration of :- (i) the arguments of

learned advocates of all the three parties; (ii) the material
on record of this application, including in the form of affidavit-

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in-reply by CBI and affidavit in replies by the victim and the

material annexed therewith; (iii) the judgments of the Supreme
Court of India laying down parameters to be kept in view while
deciding an application under section 389 of CrPC, that too
when the conviction is based on circumstantial evidence, and
(iv) having considered the appreciation of evidence done by
the CBI Court and the findings recorded by it, this Court finds
prima facie that, the conviction recorded by the CBI Court is
ex-facie erroneous and unsustainable, qua the present
applicant.

20. Before recording this satisfaction, this Court has read the
relevant pages of the impugned judgment. Having done that
exercise, we find that there is breach of all the parameters /
principles prescribed by the Supreme Court of India in the
case of Sharad Badrichand Sarda (Supra) and State of Goa vs.
Sanjay Thakran (Supra). When the circumstances against the
applicant are taken cumulatively, we do not find any chain of
evidence having been established, leading to conclusion that
in all probability the crime was committed by the applicant. We
further find that the circumstantial evidences in this case not
only leads to many other hypothesis than that of the guilt of
the accused, even false implication of the applicant can not be
ruled out.

21. Though we need not stretch it to the extent, whether this

is a case of acquittal or not, but we have no hesitation to arrive
at the conclusion that, even if the aspect of false implication of
the present applicant for political consideration in the
circumstances prevailing then is not gone into, the conviction
under section 302 of IPC with the aid of Section 120B is less

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likely to be sustained.

22. For all the above reasons, the sentence imposed by the
CBI Court needs to be suspended and the applicant needs to
be granted bail, during pendency of appeal.

23. Whether this Court can suspend the sentence or not, for
that authorities need not be searched. When required, this
Court does exercise that power. Reference in this regard is
made to the order of this Court recorded in Criminal Misc.
Application (for suspension of sentence) No. 1 of 2020 in
Criminal Appeal No. 1116 of 2020 dated 23.12.2020. Further,
the prepositions of law in the authorities relied by the learned
advocates for the respondents are already accepted as noted
above, to the extent, the parameters to be kept in view by this
Court while considering such an application. Those authorities
do not require discussion beyond this. It is also noted that,
details with regard to number of other FIRs against the
applicant are also placed on record of this application. We do
not consider that to be a relevant factor because the point at
issue is, whether conviction recorded by the CBI Court in this
case is sustainable or not. In totality, this Court finds that, on
facts, the conviction recorded by the CBI Court is principally
based on assumptions and presumptions and the same is ex-
facie unsustainable qua the applicant. The sentence imposed
on the applicant therefore needs to be suspended.

24. For the reasons recorded above, the following order

is passed.

24.1 This application for suspension of sentence is

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allowed.

24.2 It is ordered that, during pendency of Criminal

Appeal No. 2163 of 2019, the sentence imposed by the Special
Judge (CBI) Ahmedabad vide common judgment and order
dated 11.07.2019 recorded in Special CBI Sessions Case Nos.
1 to 3 of 2014, shall remain suspended, qua the present
applicant.

24.3 The applicant is granted bail on his furnishing

personal bond of Rs. 1,00,000/- (Rupees One Lakh only) and
one surety of equal amount before the concerned court, with
the further condition that the applicant shall not leave the
country without prior permission of the Court and he shall
surrender his passport, if he is having, with the concerned
Court, within a period of 15 days from the date of his release.

24.4 At present, the applicant is stated to be serving his

sentence at the Sabarmati Central Jail, Ahmedabad. Registry is
directed to communicate this order to the concerned jail
authority by fax / email, with the further direction that the
applicant shall be released by the concerned jail authorities
forthwith, if his custody is not required in any other case.

Direct service is permitted.

(PARESH UPADHYAY, J)

(A. C. JOSHI,J)
MOBHATI/PS/PC/01

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