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2017 DIGILAW 1812 (GUJ)

Ramanbhai Dahyabhai Rana v. State of Gujarat

2017-11-28

A.G.URAIZEE, ANANT S.DAVE

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ORDER : ANANT S. DAVE, J. Rule. Ms. Maithili Mehta, learned APP waives service of notice of Rule on behalf of the respondent-State. 2. In this application under Section 389 of the Code of Criminal Procedure, 1973 the prayer is to suspend the sentence and grant regular bail to the applicant-accused no. 1 who was convicted under section 302 read with section 120B of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs. 2000/- in default of payment of fine to further undergo 2 months simple imprisonment. 3. Shri. P.P Majmudar, learned advocate for the applicant herein has taken us to the case of the prosecution in which it was alleged that the applicant-accused no. 1 was harassing the girls and the deceased Shambhubhai and witness Shailendra reprimanded them for not doing so and as a result thereof, the appellant entered into conspiracy with an intention to kill Shambhubhai and witness Shailendra and the appellant called deceased Shambhubhai nearby at mobile tower of Dhimasar village. That witness Shailendra, who was on duty in the company refused to reach there in time and accused nos. 1, 2 and 3 together had given knife blows to the deceased Shambhubhai on different parts of the body, who succumbed to the injuries later on. 4. It is submitted that the case of the prosecution is based on circumstantial evidence, which includes last seen together with the accused by the witness viz. PW No. 13 and to a great extent it is supported by Shailesh, PW No. 16, who was also called to reach mobile tower of Dhimasar village. In addition to above, the prosecution case was believed by the learned trial judge based on Serological Report inasmuch as blood group of the deceased was ‘O’ group and accused had blood group of ‘AB’. The bloodstains on clothes of the deceased, the bloodstains found on the muddamal article knife as well as bloodstains found on the clothes of accused, were found to be of Group ‘O’. It is submitted that all the circumstances believed by the learned trial judge are not established and having no nexus or a link with other circumstances establishing guilt of the accused and also ruling out involvement of accused. It is submitted that all the circumstances believed by the learned trial judge are not established and having no nexus or a link with other circumstances establishing guilt of the accused and also ruling out involvement of accused. The case of the prosecution is also about in all five accused and two accused are found to be absconding as per the charge sheet filed in the court. 5. It is accordingly submitted that the evidence as above may kindly be considered and that the period of imprisonment so far is about 8 years as the applicant was not bailed out during the trial and the present appeal which is filed in the year 2017 is not likely to be heard in the near future and the applicant may be enlarged on bail by suspending the sentence. 6. Ms. Maithili Mehta, learned APP appearing for the respondent-State has opposed the bail on the ground that the case of prosecution though based on circumstantial evidence is believed by the learned trial judge and not only circumstances were established, but even forming a chain were also considered in light of the settled principles of law by the Apex Court to which reference was made by the learned trial Judge in paragraph 13 of the judgment, which includes the conduct of the accused before commission of the crime when he along with other accused were remanded by the deceased and PW No. 16-Shaileshbhai and on third day of such admonishing murder of Shambhubhai had taken place. The post mortem report and the timings etc. of the death of Shambhubhai supports the theory of last seen together so deposed by PW No. 13 and the presence of the motorcycle of the deceased at the scene of offence and other bloodstains coupled with blood group of ‘O’ group belonging to the deceased were found on the clothes of the present applicant and, therefore, at this stage the application and prayer made therein deserve to be rejected. 7. 7. Having regard to the facts and circumstances and perusal of paper book containing oral as well as documentary evidence, in the context of the submissions made by the learned advocate for the applicant and the learned Additional Public Prosecutor for the State and that the circumstances emerging on record to which detailed discussion can be made finally when the criminal appeal against the conviction is taken up for hearing, but considering the testimony of PW No. 13, medical Expert, Shailendrabhai, PW no. 16 testimony of panchas of recovery of knife and also of clothes of the accused, we find that the accused-applicant, we find that accused-applicant was in jail for about 8 years and the appeal may not be heard in the near future, a case is made out to suspend the sentence and grant regular bail to the present applicant are concerned and grant them bail.