S.H. Vora, J.

1. By way of present applications under section 389 of Code of Criminal Procedure, the applicants viz. Mr. Naushadbhai, Mr. Nishant and Mr. Nihalbhai seek suspension of sentence imposed upon them for the offences punishable under sections 302, 307, 143, 147, 148 read with section 149 of IPC and section 135 of GP Act as per judgment rendered on 20.10.2022 passed in Sessions Case No. 28 of 2020 by the learned Sessions Judge, Bhavnagar at Talaja.

2. The prosecution case as unfolded before the learned Trial Court is such that it is alleged by first informant that before 5 years, father of first informant was having some dispute with present applicants and other accused person regarding keepting their arms in their old house and since then, there is continuous quarrel and dispute between the parties. It is alleged that during festival of Mohram, brothers of first informant were beaten by accused persons and as the dispute was settled, no complaint was lodged. It is alleged that on 09.10.2016 at about 7.00 pm, first informant, her brother in law and her sister went to the mosque. It is alleged that relatives of first informant were thrown out of the mosque stating that they have been outcast by the present applicants but they again went to mosque and when they were returning home, accused persons namely Ms. Nasimben, Ms. Reshmaben and Ms. Rojiben started pelting stones on the first informant as well as other two person. It is alleged that pursuant to said incident, brothers of the first informant Mr. Abbasbhai, Mr. Alihussain and father Mr. Pyarali reached to the spot to save them. It is alleged that at that point of time, present applicants and other persons came out from the car with weapons like sword, gupti and revolver and other 5 to 10 persons were also armed with sword and dhariya. It is alleged by first informant that the applicant has fired 5 to 6 rounds on her brothers and her father and because of firing, brothers and father of the first informant were seriously injured and were also beaten by the other accused person and thereafter, they were taken to the Government Hospital at Talaja but the were succumbed to injuries and were declared dead by the doctor. It is also alleged that he nephew of first informant was also seriously injured and was kept under observation in the hospital. Thus complaint came to be lodged by one Neelamben being C.R. No.I-79 of 2016 with Talaja Police Station, Bhavnagar.

3. On registration of FIR, investigation was carried out and after collecting oral and documentary evidence, charge sheet came to be filed against the applicants, but the applicants pleaded not guilty and claimed trial.

4. The prosecution has examined in all 53 witnesses and also produced documentary evidence, so as to bring home charge. In further statement recorded under section 313 of the Cr.P.C, the applicants - accused denied incriminating circumstances put to them and further stated that false case has been filed against them.

5. At the end of trial, learned Additional Sessions Judge found accused guilty for the aforesaid offences and convicted the applicants under section 302 read with section 149 of IPC and sentenced to undergo life imprisonment and pay fine of Rs.5,000/-, under sections 307 with 149 of IPC and sentenced to undergo RI for 10 years and payment of fine of Rs.5000/-, under section 143 with 149 of IPC sentenced to undergo RI for 5 months and payment of fine of Rs.1000/-, under sections 147 with 149 of IPC to undergo RI for 2 years and payment of fine of Rs.1000/-, under sections 148 with 149 of IPC to undergo RI for 3 years and payment of fine of Rs.1000/- and under section 135 of GP Act sentenced to undergo SI for 6 months and payment of fine of Rs.500/-.

6. Learned Senior Counsel Mr. Y.S. Lakhani for the applicants submits that it is clear instance of false implication wherein entire family members of accused no.1 have been implicated due to grudge and resentment carried by first informant and her family against the family of the applicants. It is submitted that motive for commission of alleged offence viz. two incidents one before 5 years and other before 1 year of incidence. But there is no material worth the name to lend credence to the theory of dispute having occurred between two families with regard to putting arms in old house of father of the first informant and also altercation between two families one year back during Tajiya procession. It is urged that prosecution suppressed genesis of the incident i.e. pelting stones at the hands of female accused no. 9 to 11, more particularly, learned Trial Judge disbelieved the same and acquitted the accused nos. 9 to 11 of all charges. It is further submitted that evidence of witnesses recorded before learned Trial Judge are relatives and interested witnesses only. It is urged that nephew of the deceased - Mehndibhi injured eye witness is declared hostile by the prosecution though he narrates true facts in his dying declaration annexed at Page No. 406, wherein, he states that perpetrators are accused no.1 and about 100 to 150 persons and not the applicants.

6.1. Further it is submitted by learned Senior Counsel Mr. Lakhani that two independent witnesses viz. PW 41- Hussain and PW - 42 - Zahir who are friends of father of the first informant have not supported the prosecution case. It is urged that presence of first informant PW-33 as well as other eye witness Saberaben PW-40 at the scene of offence is highly doubtful and more particularly, when learned Trial Judge has not believed this two witnesses in their entirety and acquitted accused no.8 to 11 from all charges. It is submitted that no any specific role is attributed to the applicants nor allegedly holding weapons like fire arms or sword, in fact only allegation in the FIR itself is made against accused no.1 of firing. It is further submitted that only after 2 days of incident, complainant Neelamben on 11.10.2016 attributed specific role to each of the accused, wherein, she attributes role of firing by Naushadbhai and Nihalbhai and role of sword blow by Nishant.

6.2. Lastly, it is urged that witnesses more particularly, eye witnesses had multiple opportunities to register complaint or give statement or name the accused, but she does not do so till 11.10.2016 and further ballistic report discloses that fire arms which were allegedly used by applicant Naushadbhai and Nihalbhai were not in working condition and no any bullets or kartoos were fired from the same. It has come on record that both the weapons were licensed weapons. Therefore, it is submitted that in absence of cogent and reliable evidence, judgment of conviction is recorded by the learned Additional Sessions Judge and therefore, present application may be considered.

7. Learned APP while opposing present application for suspension of sentence took us through deposition of PW - 33 Neelamben and PW - 37 - Mehendi Raza and submits that on account of grudge on the part of the applicant's family, alleged incident occurred and Neelamben could not disclose true facts at relevant time on account of she being under trauma on account of serious offence occurred in her presence. It is submitted that this being case of serious offence of triple murder, the applicants may not be enlarged on bail.

8. It is settled by the Hon'ble Supreme Court in various pronouncements that discretion under section 389 of Code of Criminal Procedure is to be exercised judiciously and the Appellate Court is obliged to consider whether cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and there is likelihood of unreasonable delay in disposal of the appeal, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. It is also settled by the Hon'ble Supreme Court that where there is evidence that has been considered by the Trial Court, it is not open to the Court considering the application under section 389 to re-assess, re-examine and/or re-analyze the same evidence and take a different view to suspend the execution of the sentence and release the convict on bail. In nutshell, following factors before grant of bail are required to be considered :-

(i) Nature of accusation, severity of punishment in case of conviction and nature of supporting evidence.

(ii) Reasonable apprehension of tempering with the evidence and apprehension of threat to the complainant.

(iii) Prima facie satisfaction of the Court in support of the charge.

9. We have minutely perused deposition of the witnesses and examined documentary evidence and given thoughtful consideration to the submissions made at bar. Learned APP could not show us that there was any motive to commit offence which allegedly occurred 5 years ago between two families pertaining to putting fire arms in the house of father of the first informant and incident pertaining to altercation between the two families one year back during Tajiya procession. No material whatsoever was produced and same is eloquent from deposition of Investigating officer. Further PW-52 IO admits that no supporting material could be gathered during investigation pertaining to presence of Nilamben and Saberabanu and Ismatbanu at Majlis at night as claimed and the theory of altercation with female members of accused no.1. Disbelieving version of eye witness viz. Nilamben and Saberabanu, learned Trial Judge acquitted accused nos.8 to 11 and thus genesis of incident as per prosecution case of stone pelting at the hand of accused nos. 9 to 11 is disbelieved, which resulted into acquittal of said accused persons. In other words, learned Trial Judge did not believe version of two eye witnesses. We have further noticed that Nilamben - complainant lodged FIR between 2.45 hours to 3.00 hours on 10.10.2016, wherein, she did not attribute any role to the present applicants nor she alleged that any of them were holding any weapons like fire arm or sword. In fact only allegation is made against accused no.1 of firing. It is worthwhile to notice here that certain assertions made by the first informant so as to project that she was eye witness to the incident are such that as per her statement in the complaint she had called her brother from her mobile so as to save herself and other two lady from stone pelting. But there was no evidence found as per Investigating Officer. Further as per her complaint in FIR, she called 100 police and 108 ambulance from her mobile from the scene of offence. However, Investigating Officer admits that no such evidence is found in investigation in CDR at Exh.377. It is further stated that her clothes were stained with blood, however, no such clothes are produced during investigation and the IO admits that he had neither noticed any individual with blood stained clothes nor he has seized any such clothes. On the top of it, she states that she received injury in stone pelting, however, no treatment is taken by her.

10. One glaring fact noticed by us is such that Inquest panchnama process started from 2.30 hours to 4.15 hours and as per deposition of Dy. Mamlatdar as well as Inquest Panch witness, it has come on record that during inquest panchnama process, complainant - Nilamben was present all throughout and she has not narrated or disclosed name of any of the accused and as to how incident has occurred, despite the fact that IO PW-52 was present along with Dy. Mamlatdar and panchas. On the contrary, it has come on record in the deposition of one PW-1- Ganpathbhai that though police was questioning complainant Nilamben, but she did not disclose anything with regard to incident or involvement of any of the applicants in the offence.

11. Since offence involves murder of three persons through firing, we have carefully examined deposition of PW - 33, more particularly, examination in chief recorded below Exh.198. As recorded herein above, learned Trial Judge has not believed incident of stone pelting and acquitted accused no.9 to 11. In para 4, she specifically deposed that accused no.1 fired from his revolver on 3 victims and thereafter, she attributes role of applicants. In improved version after 2 days, she has stated before the police and the Court that the applicant viz. - Mr. Naushadbhai and Nihalbhai had fired from revolver and caused injury to the deceased. In this regard, it is to be noted that both the revolvers allegedly possessed by the applicants were licensed weapon and there is clear opinion of ballistic expert that same has not been used or any firing took place through said revolvers. So far as role attributed to accused Nishant that he was holding sword, but no any recovery or discovery is made. On the contrary, it has come on record that at the relevant time of incident, he was in Majlis and same is deposed by IO - PW-52 and for that he took statement of witnesses - Abbas and Munjil who categorically stated that said applicant was present at Majlis during commotion.

12. One fact noticed by us is such that Inquest panchanama continued from 2.15 hours to 4.15 hours and though Nilamben was inside the room as stated by the IO and Dy. Mamlatdar and panch witness - Ganpath, then how FIR could be recorded between 2.45 hours to 3.45 hours. We have considered 3 different versions put forth by the victim with regard to genesis of incident of stone pelting which is not believed by the learned Trial Judge, non involvement of the applicants in her first version i.e. FIR, and implication of the applicants only after 2 days, despite the fact that she knows accused as they were residing in the same vicinity.

13. Apart from it applicant - Mr. Nihal and Mr. Naushad are behind bars since more than 5 years. Learned Trial Judge has not considered any of the afore-stated evidence surfacing on record in the deposition of witnesses.

14. We have carefully considered first version provided by Mehandi Raza who is nephew of deceased, whereby, he discloses in DD that accused no.1 did firing and at that time about 100 to 150 persons were accompanying him and same allegations are levelled by the complainant in her complaint but subsequently, she has made lot of improvement but not supported by any ballistic report.

15. In view of such position, we have no hesitation in prima facie observing that there are infirmities in the findings recording conviction by the learned Trial Judge and therefore, present application deserves consideration.

16. Having considered aforesaid relevant material adduced on record, prima facie, we find that conviction recorded under sections 302, 307, 143, 147, 148 read with 149 of IPC and section 135 of GP Act is erroneous and therefore, we deem it fit to allow present applications, pending hearing of conviction appeals by imposing suitable conditions. Accordingly, following order is passed.

17. The judgment and order of sentence dated 20.10.2022 passed by learned Sessions Judge, Bhavnagar at Talaja in Sessions Case No. 28 of 2020 (FIR - C.R. No.I-79 of 2016 registered with Talaja Police Station) is hereby suspended and the applicants accused are released on bail, pending hearing of the appeals on furnishing bail bond of Rs.50,000/- each and surety of like amount to the satisfaction of the learned Sessions Court concerned and on further following conditions :

(a) The applicants shall not leave limits of Gujarat State till final disposal of the appeal.

(b) The applicants shall surrender passport, if any, within 3 days from today before the concerned Sessions Court and if they do not hold passport, they shall file affidavit before the Sessions Court concerned to that effect.

(c) The applicants shall not involve themselves in any criminal activity while on bail or attempt to contact any prosecution witnesses.

(d) The applicants shall attend hearing of the appeal regularly as and when it is fixed and further mark their presence on 1st day of every Month before the concerned Police Station between 11.00 am to 2.00 pm till appeals are finally disposed of.

(e) The applicants shall furnish their address of residence to the concerned police station and shall not change the same without prior permission of this Court till final disposal of appeals.

18. It is made clear that if any of the aforesaid conditions is breached by the applicants accused, the State is at liberty to file application for cancellation of bail before this Court. The applicants are ordered to be released on bail forthwith if not required in any other offence.

19. Accordingly, present applications are allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.