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2016 DIGILAW 1868 (GUJ)

Lakhabhai Lakhmanbhai Malani v. State of Gujarat

2016-09-01

BIREN VAISHNAV, HARSHA DEVANI

body2016
ORDER : BIREN VAISHNAV, J. Heard Mr. Aamir Pathan, learned advocate for Mr. Ashish Dagli, learned advocate for the applicant and Ms. Nisha Thakore, learned APP for the respondent. By this application, the applicant - convict has prayed that the sentence awarded by the learned Second Additional Sessions Judge, Junagadh in Sessions Case No. 95 of 2008, vide judgment and order dated 31.01.2014, be suspended. 2. Mr. Aamir Pathan, learned advocate for the applicant has submitted that the applicant was not initially named in the FIR and has been sought to be falsely implicated in the offence. Mr. Pathan further submits that the entire case rests upon circumstantial evidence and that no evidence which is admissible in law has been adduced and that the applicant has been convicted merely on the basis of a demonstration panchnama which is stated to be discovery under Section 27 of the Evidence Act. During the course of argument, Mr. Aamir Pathan has drawn our attention to the order passed in Criminal Misc. Application no. 14552 of 2016, dated 11.07.2016, wherein this court vide order 11.07.2016 has suspended the sentence vis-a-vis a co-accused of the same offence in Sessions Case No. 9 of 2009, who also has been convicted by the judgment and order of the learned Additional Sessions Judge, Junagadh vide judgment and order dated 31.01.2014 3. On the other hand, Ms. Nisha Thakore, learned APP for the respondent has opposed the application by submitting that the learned trial court has given cogent, convincing and sufficient reasons in support of its findings and that the evidence may be gone into at length at the stage of hearing of the appeal and at this stage, there is no warrant for exercise of discretion in favour of the applicant. She is, however, not in a position to dispute the fact that the present applicant's case is at par with the applicant of Criminal Misc. Application No. 14552 of 2016. 4. She is, however, not in a position to dispute the fact that the present applicant's case is at par with the applicant of Criminal Misc. Application No. 14552 of 2016. 4. Having considered the submissions advanced by the learned advocates for the respective parties and having perused the judgment under challenge, in view of the fact that a co-accused has been granted bail vide our order dated 11.07.2016, on ground of parity, we are inclined to exercise discretion for the reasons assigned in our order dated 11.07.2016, wherein we categorically observed that the conviction has been recorded merely on the basis of a demonstration panchnama which is stated to be discovery under Section 27 of the Evidence Act. Prima facie, the trial court appears to have placed reliance on the demonstration panchnama, which has not led to any discovery. This being an application for bail, this court is not required to enter into an elaborate discussion of the evidence adduced by the prosecution. The applicant has made out a prima facie case for exercise of discretion in his favour. 5. The application, therefore, succeeds and is, accordingly, allowed. The sentence imposed by the learned Second Additional Sessions Judge, Junagadh, vide judgment and order dated 31.01.2014 rendered in Sessions Case No. 95 of 2008 is hereby suspended and the applicant is ordered to be enlarged on bail till the final disposal of the appeal on his executing a bail bond of Rs. 20,000/- (Rupees Twenty Thousand Only) with one solvent surety of the like amount to the satisfaction of the lower court with following conditions: (a) He shall not take undue advantage of his liberty or abuse his liberty; (b) He shall maintain law and order; (c) He shall surrender his passport, if any, to the lower court, within a week and if he does not possess any passport, then he shall make a declaration to that effect before the trial court; (d) If during the pendency of the criminal appeal any change in his residential address, permanent or temporary, takes place, then the applicant shall intimate the same to the trial court as well as the concerned Police Station; 6. Bail before the trial court having jurisdiction. 7. However, it is made clear that any observations made while deciding this bail application will not affect merits of the case at the time of final arguments.