Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 2032 (GUJ)

Narsinhbhai Mafabhai Koli v. State of Gujarat

2016-09-12

ANANT S.DAVE, B.N.KARIA

body2016
ORDER : ANANT S. DAVE, J. This application is preferred under Section 389 of the Code of Criminal Procedure, 1973 for suspension of sentence and grant of bail pending final hearing of Criminal Appeal (against conviction) No. 1135 of 2016, which came to be admitted on 11.8.2016, against the judgment by which the applicant being one of the accused came to be convicted for offence under Section 302 read with Sections 34 and 114 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs. 10,000/- and in default thereof to undergo two months simple imprisonment. 2. Ms. Mittal Patel, learned advocate for the applicant has taken us to the backdrop of the case of prosecution and submitted that it revolves around circumstantial evidence including that of last seen together and discovery was reflected in the panchnama drawn under Section 27 of the Evidence Act and testimonies of Hetalben, PW-4 and Vanitaben, PW-6, both daughters of the victim and accused no. 1. The applicant is accused of committing murder the deceased in view of last scene together with victim, his wife (accused no. 1) and one another accused while taking the victim in auto-rickshaw and later on thrown him into canal, which resulted into death due to asphyxia by drowning. According to her, except testimonies of two daughters of the victim and accused no. 1, no other circumstance surface on the record having nexus and it cannot be said that prosecution has established circumstances leading to the guilt of the accused. Inspite of discovery of mobile, no details appear on record about calls made during the period having connectivity with the crime. Further motive as such remains under cloud, since no material is brought on record about alleged illicit relationship of the applicant with the wife of the deceased. In her testimony, Hetalben, PW-4 admits to addiction of liquor by her father and earlier also he was missing. No doubt, learned trial Court has taken into consideration various principles of appreciation of evidence and the role of trial Court to analyze circumstantial evidence by relying on decisions of the Apex Court but case of the applicant cannot be said to have been proved beyond reasonable doubt by prosecution and appeal is likely to take quite a few years for final hearing and the applicant be enlarged on bail. 3. Learned APP, Mr. 3. Learned APP, Mr. Rutvij Oza for the State of Gujarat has opposed grant of bail on the ground that learned trial Judge in para 28 of the judgment has considered circumstantial evidence by relying on depositions of PW-2, PW-3, PW-4, PW-6 and PW-7 by which prosecution has established the circumstance of last seen together and even disclosure by accused no. 1 before her daughter viz. PW-4 about throwing body of her husband in a canal. Learned APP has also placed reliance on panchnama under Section 27 of Evidence Act and testimonies of investigating officer and submitted that when circumstantial evidence so establish forming chain of events and nexus with each other resulting into conviction of applicant, no bail be granted. 4. Having heard learned advocate appearing for the applicant and learned APP for the State of Gujarat and perusal of record, viz. testimonies and other documentary evidence made available to us at this stage, prima facie, we find that testimonies of PW-4 and PW-6, daughters of the deceased as well as accused no. 1, throw some light about deceased leaving the house in a rickshaw with the applicant and other persons but beyond that no material appears on record about their further movement and that of throwing deceased into canal. As the appeal is admitted and likely to take time for final hearing, other aspects about discovery panchnama under Section 27 and trustworthiness and reliability of testimonies of PW-4 and PW-6, we would not like to comment much upon and prima facie find that a case is made out to suspend the sentence and enlarge the applicant on bail by suspending the sentence. 5. The present application is allowed. The applicant is enlarged on bail on his furnishing a solvent surety of Rs. 10,000/- (Rupees Ten Thousand only) and personal bond of the like amount on usual terms and on the following further conditions:- (a) The applicant shall not take undue advantage of his liberty or abuse his liberty. (b) The applicant shall not try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner. (c) He shall maintain law and order. (d) The applicant shall surrender his passport, if any, to the lower Court within a week. 6. In the meantime, the substantive sentence shall remain under suspension. Bail bond before the trial Court. Rule is made absolute. Direct service is permitted. 7. (c) He shall maintain law and order. (d) The applicant shall surrender his passport, if any, to the lower Court within a week. 6. In the meantime, the substantive sentence shall remain under suspension. Bail bond before the trial Court. Rule is made absolute. Direct service is permitted. 7. The observation herein above shall have no bearing on the case at the stage of final hearing.