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2016 DIGILAW 1992 (GUJ)

Juned alias Bhano Ahmad Matva v. State of Gujarat

2016-09-07

ANANT S.DAVE, B.N.KARIA

body2016
ORDER : ANANT S. DAVE, J.: This Application under Section 389 of the Code of Criminal Procedure, 1973 for suspending sentence and grant of bail is preferred by the applicants-original accused nos. 1 and 2, who were on bail during the trial and finally they came to be convicted for offence punishable under Section 302 read with Section 114 IPC for imprisonment for life and fine of Rs. 1 lac and other sentences along with conviction under Section 364 read with Section 114 & 120B IPC. All the sentences were ordered to run concurrently. 2. Mr. S.V Raju, learned Senior Advocate, appearing for the applicants submitted that the prosecution though held to have established its case in the backdrop of conspiracy, execution thereof and version of taxi driver viz., PW-9 at Exh. 66 Rafiqshah Razakshah who was driving the taxi from the place where the victim was kidnapped has deposed about five persons; including the Taxi driver in the taxi and out of which one person got down immediately after the taxi had started for its destination, and thereafter commission of crime by the applicants, who were known to the taxi driver is one of the important piece of evidence for the prosecution. 3. It is further submitted that other evidences appear in the form of FSL namely blood stain marks on the body of the deceased, decomposed body recovered from the well and postmortem report revealing cardio respiratory failure due to injury on brain and lungs, but, scanty evidence about conspiracy. Section 164 CrPC statement recorded before the learned JMFC along with other attending circumstances make out a case for suspending the sentence and granting of regular bail, though opposed by the learned APP on the ground that conviction is ordered and sentence for life imprisonment is imposed, pursuant to proved case by the prosecution. 4. It is further submitted that there is no eye witness and the case of the prosecution was based on circumstantial evidence and the prosecution has failed to establish the chain of circumstances. It is further submitted that no panchas have supported the respective panchanama and the prosecution has failed to prove the recovery and discovery in its entirety. 4. It is further submitted that there is no eye witness and the case of the prosecution was based on circumstantial evidence and the prosecution has failed to establish the chain of circumstances. It is further submitted that no panchas have supported the respective panchanama and the prosecution has failed to prove the recovery and discovery in its entirety. It is further submitted that the body of the deceased was found in a decomposed position and therefore the blood samples of the deceased could not be obtained for the purpose of conducting any test analysis and therefore it cannot be concluded that the blood found from the articles seized during the course of investigation was of the deceased. 5. Mr. Rutvij Oza, learned APP, has opposed suspension of sentence of the applicants inter alia on the ground that there is a clear evidence against the applicants and therefore the learned trial Judge has convicted and sentenced them appropriately in accordance with law and the applicants are not entitled to any discretionary relief, as prayed for int the application. 6. We have carefully gone through the judgment and order under challenge for the purpose of exercising power under Section 389 of the Code of Criminal Procedure, considered the submissions made on behalf of the respective sides, read over copy of the evidence made available and we find that case is made out to exercise discretion in favour of applicants; as prayed for. 7. Resultantly, the present application is allowed. The applicants are enlarged on bail on his furnishing a solvent surety of Rs. 10,000/- (Rupees Ten thousand) each and personal bond of the like amount on usual terms and on the following further conditions:- (1) The applicants shall not take undue advantage of their liberty or abuse their liberty. (2) The applicants shall not to try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner. (3) maintain law and order. (4) surrender his passport, if any, to the lower Court, within a week. 8. In the meanwhile, the substantive sentence shall remain under suspension. Bail bond before the Trial Court. Rule is made absolute. Direct service is permitted. 9. As a parting note, it is clarified that this order shall have no bearing at the stage of final haring of Criminal Appeal.