Gujarat High Court suspends former BJP MP’s life imprisonment sentence in RTI activist murder case

The Gujarat High Court on Thursday suspended a life imprisonment sentence ordered by the CBI Court, Ahmedabad against Dinubhai Bogabhai Solanki, a former Member of Parliament representing the Bharatiya Janata Party (BJP), and granted him bail during pendency of the appeal (Dinubhai Bogabhai Solanki v. State of Gujarat)..A Bench of Justices Paresh Upadhyay and AC Joshi ordered the same in an application for suspension of sentence during the pendency of the appeal against Solanki's conviction by a Special CBI Judge. Solanki was sentenced to rigorous imprisonment for life under Sections 302 (murder) and 120B (criminal conspiracy) of the Indian Penal Code in relation to the 2010 killing of Right to Information (RTI) activist Amit Jethwa..Counsel for Solanki argued that he was falsely implicated in the case for political reasons. Further, it was contended that even if the Court cannot go into that aspect at the present stage, there were several counts on which the conviction was unsustainable.Both the Special Public Prosecutors as well as the counsel representing the victim stressed that it was not open for the Court to reappreciate the evidence in the case at this stage..Before examining rival contentions, the Bench clarified that the presumption of innocence was not available to the applicant.“Since he is already convicted by the competent Court and the said conviction stares on the face of the applicant.”Despite this, it was stated that an application for sentence still cannot be rejected simply on the ground that the competent court recorded the conviction. The Division Bench observed,“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.”.The High Court, in no unsure terms, stated that the entire case rested on circumstantial evidence and therefore, examined the five golden principles laid down by the Supreme Court in Sharad Badirchand Sarda v. State of Maharashtra when viewing cases based on circumstantial evidence."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.”.While examining the evidence summarily, the Court took note of the error on the CBI Court’s part by considering irrelevant aspects to arrive at a conclusion that no ordinary man would arrive at.“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.”Therefore, the Court observed that it cannot approve of such conviction on such reasoning, especially when it keeps a person behind bars his whole life..The Bench noted that the CBI Court CBI Court recorded its satisfaction that two other co-accused - Ghanshyam Solanki and Bhadursinh Vadher - had talked inter-se number of times, on their mobile phones. The order stated,"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 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...".It was also found that the circumstantial evidence led to many other hypotheses other than guilt of the accused.“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 likely to be sustained.”.Therefore, the sentence was suspended, and the applicant was granted bail on furnishing personal bond of ₹1,00,000 and one surety. He was also directed to surrender his passport..Senior Advocate ND Nanavati appeared for Solanki, while Senior Advocate BB Naik appeared for the victim. Special Public Prosecutors RC Kodekar and Mukesh G Kapadiya appeared for the Central Bureau of Investigation..[Read Judgment Here]