Excerpt
The present application had been filed under Section 389 of Criminal Procedure Code, 1973 whereby the applicant sought for suspension of his sentence. The Court allowed the application and suspended his sentence, as there were no eyewitnesses of the incident in the present case.
Background
The applicant had sought for suspension of his sentence pending Criminal Appeal no.221 of 2021, which arose out of the judgment and order dated 25/09/2018 as passed by the Learned Sessions Judge, Mahisagar in Sessions Case no.154 of 2017. In that case, Learned Trial Court had convicted the applicant along with another accused of the offence punishable under Section 302 & 201 of IPC and Section 135 of the Gujarat Police Act and was sentenced to undergo life imprisonment and also fine of Rs. 50,000/- and in default of payment of such fine, he shall undergo R.I for a period of two years. Learned Trial Court had also imposed compensation of Rs.1,00,000/- which was to be paid by the applicant to the legal heirs of the deceased.
Submissions before the Court
Applicant’s Submissions
Mr Pratik Barot, learned advocate for the applicant had drawn Court’s attention to the evidence led before the Learned Trial Court and also the order dated 05/07/2019 passed by a Co-ordinate Bench of this Court in Criminal Miscellaneous Application no.1 of 2019, under which, conviction imposed by the Trial Court against co-accused, i.e., Kantibhai Kalabhai Charel had been suspended.
Mr Barot had also taken the Court through the deposition of witnesses and reasoning part of the said judgment. He submitted that the present case was based on circumstantial evidence, but the prosecution had miserably failed to establish the case against the applicant- appellant by completing the chain of circumstances, and also it cannot be only based on suspicion, that the applicant is convicted and sentenced.
He had further submitted that out of a total of 20 witnesses examined by the prosecution, 15 witnesses including the panch witnesses and close relatives of the deceased, had not supported the case of the prosecution, also none of the witnesses had seen the incident. He submitted that the case as put forward by the prosecution was that the applicant and Kantibhai had inflicted a stone blow on the head of the deceased person. Considering all these aspects, the conviction and sentence imposed upon Kantibhai had been suspended by a Co-ordinate Bench of this Court vide an order dated 05/07/2019 in Criminal Misc. Application no.1 of 2019 in Criminal Appeal No.669 of 2019 and therefore based on the ground of parity, conviction, and sentence as imposed by the Trial court on the applicant may also be suspended.
Respondent’s Submissions
Mr Dharmesh Devnani, Learned Additional Public Prosecutor appearing for the Respondent- State had taken the Court through the deposition of the close relatives of the deceased and also submitted that although they had not supported the case of the prosecution, however, they had stated that the present applicant was last seen around the area of crime. He further submitted that a chain of circumstances that pointed towards the guilt of the applicant had been duly established by the respondent- State and therefore, this application may be rejected.
Consideration by Court
After hearing the learned Advocates for both the parties and scrutinizing the case, prima facie, it appeared to the Court that there was no eye witness to the incident and there was also no witness of lastly seen together. The Court had also gone through the reasoning part of the order dated 05/07/2019 passed by the Co-ordinate Bench of this Court in Criminal Misc. Application No.1 of 2019, by which, co-accused namely Kantibhai Kalabhai Charel was enlarged on bail during the pendency of the appeal.
Court’s Directions
As per the facts and circumstances of the case and the submissions made by the learned Advocates for both the parties, the Court believed that the present application deserved to be granted. Accordingly, the present application was allowed.
Because of it, it was directed that the execution of the judgment and order dated 25/09/2018 passed by the Learned Sessions Judge, Mahisagar, at Lunawada in Sessions Case No.154 of 2017 shall also remain suspended, as prayed by the applicant, pending the appeal qua the present applicant- appellant namely Kanubhai Kirit Virsingbhai Mahida and that he shall be released pending the appeal subject to the conditions that the applicant shall furnish the bond of Rs.10,000/- and surety of the like amount. He shall also deposit his passport, if any, before the concerned Sessions Court and should not take undue advantage of his liberty and along with that, maintain law and order.
Click here to read the interim order.
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