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2017 DIGILAW 1133 (GUJ)

Dilipbhai Mandanbhai Jogal v. State of Gujarat

2017-07-03

P.P.BHATT

body2017
ORDER : P.P. BHATT, J. The present application is filed under Section 389 of the Code of Criminal Procedure, 1973 by the applicant-convict seeking suspension of sentence imposed upon him vide judgment and order dated 06.04.2017 passed by the learned Sessions Court, Jamnagar in Sessions Case No. 55 of 2011, whereby the learned Sessions Judge has convicted the applicant for the offence punishable under Section 307 of the Indian Penal Code and sentenced to undergo 7 years rigorous imprisonment alongwith fine of Rs. 6,000/-, in default of payment of fine, to undergo further period of three years simple imprisonment. The appellant was also convicted for the offences punishable under Section 324 of the Indian Penal Code and sentenced to undergo 3 years rigorous imprisonment alongwith fine of Rs. 2,000/-, in default of payment of fine, to undergo further period of one month simple imprisonment. The appellant was further ordered to be convicted under Section 135(1) of the B.P Act (G.P Act) sentenced to undergo 4 months simple imprisonment alongwith fine of Rs. 500/-, in default of payment of fine, to undergo further period of 10 days simple imprisonment. 2. Heard learned advocate for the applicant as well as learned APP for the respondent-State. 3. Learned advocate for the applicant submits that the present applicant is an innocent person, however, he has been falsely implicated in the alleged offence. It is submitted that out of three accused persons, one accused person is acquitted by the learned Sessions Court. But so far as present applicant accused is concerned, the learned court below has not properly appreciated the documentary as well as oral evidence available on record. Therefore, being aggrieved and dissatisfied with the judgment and order passed by the Sessions Court, the applicant-appellant has preferred an appeal on various grounds as enumerated in criminal appeal before this Court. The said appeal is admitted by this Court, and the same is pending for final hearing. It is also submitted that the appellant is having good case on merits and is likely to succeed in appeal. It is further submitted that the applicant convict was on bail during the trial, and has complied with the conditions, which were imposed by the learned Sessions Court and not misuse the liberty which were granted to him. It is further submitted that looking to. It is further submitted that the applicant convict was on bail during the trial, and has complied with the conditions, which were imposed by the learned Sessions Court and not misuse the liberty which were granted to him. It is further submitted that looking to. the pendency of appeal before this Court, the chances of early final hearing of present criminal appeal on account of pendency of old criminal appeal are very less. It is further stated upon instructions that the applicant is ready and willing to deposit an amount of Rs. 50,000/- before the concerned trial Court without prejudice to the rights and contentions of the parties within a period of one month from the date of his release. It is also stated that he has no objection if the said amount is given to the victim injured towards compensation/ expenditure incurred during the course of the medical treatment. It is further submitted that the applicant will abide by the terms and conditions that may be imposed by the Court and shall not commit any breach. Therefore, the applicant may be enlarged on bail by suspending the sentence imposed by the learned Sessions Judge, Jamnagar. 4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State while opposing the present application submits that from the material on record, there is a strong prima facie case against the applicant. The learned trial Court after appreciation of evidence on record has convicted and sentenced the present applicant, and therefore, looking to the gravity of offences, the applicant may not be enlarged on bail. 5. Regard being had to the above submissions and considering the material placed on record, especially the fact that he was on bail during the trial and the chances of early final hearing of present criminal appeal on account of pendency of old criminal appeal are very less as also considering the fact that the applicant is ready and willing to deposit an amount of Rs. 50,000/-; this Court is of the view that, discretion is required to be exercised in favour of the applicant. 6. Hence, the present application is allowed and the order of sentence imposed vide judgment and order dated 06.04.2017 passed by the learned Sessions Court, Jamnagar in Sessions Case No. 55 of 2011 shall remain under suspension till the final hearing and disposal of the main appeal. 6. Hence, the present application is allowed and the order of sentence imposed vide judgment and order dated 06.04.2017 passed by the learned Sessions Court, Jamnagar in Sessions Case No. 55 of 2011 shall remain under suspension till the final hearing and disposal of the main appeal. The applicant is ordered to be released on bail on his executing a personal bail bond and surety in the sum of Rs. 10,000/- (Rupees Ten Thousand only) to the satisfaction of the Trial Court on the following terms and conditions that the applicant shall: (a) deposit the passport, if any, with the Trial Court, within a week. (b) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; (c) not take undue advantage of his liberty or abuse his liberty and maintain law and order. (d) furnish latest and permanent address of residence to the Investigating Officer, and also to the Court at the time of execution of the bond, and shall not change the residence without prior permission of this Court; (e) deposit Rs. 50,000/- before the concerned trial Court within a period of one month from the date of his release by two equal installments i.e. Rs. 25,000/- each. After depositing the aforesaid amount, the concerned trial Court shall disburse the said amount in favour of the injured victim namely Mahesh Devanandbhai Vashara after proper verification through A/c payee cheque. 7. Rule is made absolute accordingly. Direct Service is permitted.