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2017 DIGILAW 1813 (GUJ)

Thakor Jalaji Kantiji v. State of Gujarat

2017-11-28

A.G.URAIZEE, ANANT S.DAVE

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ORDER : ANANT S. DAVE, J. Heard learned counsels for the applicants. 2. Rule. Learned APPs waive service of notice of rule on behalf of respondent-State of Gujarat. 3. Both these applications are preferred by the applicants-convicts-appellants-original accused Nos. 2 and 3 of Sessions Case No. 70 of 2013 which was tried in which conviction under Section 302, 364, 114 was recorded sentencing three accused for life imprisonment, 10 years of RI, fine, etc. and all sentences were ordered to run concurrently. 4. Learned counsels Mr. Chetan Pandya and Jayprakash Umot, appearing for applicants in these applications for suspension of sentence and grant of bail would contend that the incident in question took place on 07.05.2013 in which accused No. 1 was initially named and two other unknown persons who later on turned out to be accused Nos. 2 and 3, the applicants herein. It is further submitted that initially in first two statements made by PW-4 and eye witness to the incident i.e. on 11.05.2013 and 18.05.2013, names of the applicants were not disclosed. That apart, testimonies of PW-4 if perused prima facie for the purpose of considering these applications create doubt even about his presence at the scene of offence and his conduct is not natural inasmuch as though his brother-in-law was being beaten and kidnapped in a Maruti car, he has gone back to his residence without making any effort either to intervene or to inform the police authority and thereafter received information from elder brother-in-law about beating of victim who was later on found dead. That arrest of the accused Nos. 2 and 3 almost after 2 months and other material to which learned trial Judge has addressed himself to connect the applicants with crime including that of witnesses PW-3, PW-8, PW-28, PW-29 and PW-30 happened to be relatives, and even in their testimonies they came to know about the incident later on and even PW-8 brother, PW-28 father and PW-30 wife of deceased failed to identify the deceased. Our attention is drawn to other evidence, including injuries on the body of the deceased as deposed by PW-2, who performed postmortem and it is submitted that during the trial the present applicants were considered for bail and the appeals filed by them will be heard in due course and at least not in near future and, therefore, they may be considered for suspension of sentence and bail may be granted. 5. Learned APP, however, contend that PW-4 not only named accused No. 1 since beginning and other accused though initially were unknown persons, but later on turned to be accused Nos. 2 and 3, applicants herein, for which cogent and convincing evidence appear on record and injuries reflect in postmortem report provide corroboration to the testimonies of PW-4 and PW-5. That, time which has elapsed for arresting the accused was due to non-availability of the accused and that itself is no ground to disbelieve the case of the prosecution. It is further submitted that testimonies of eye witness PW-4 along with other corroborating material was found to be sufficient to convict the present applicants by the learned trial Judge and alternatively appeals can be heard at the earliest the present applications deserve to be dismissed. 6. Having heard learned counsels for the applicants and on perusal of the relevant record, including judgment and order of conviction and sentence, conclusions drawn by learned trial Judge about guilt of the accused, we have persuaded at this stage to exercise powers under sections 389 of the Code without giving detailed analysis or any comment on merit on creditworthiness of testimonies of PW-4 at this stage which include his presence at the scene of offence, and in first two statements names of present applicants-accused Nos. 2 and 3 were not disclosed and belated efforts made to rope the applicants in the crime and if his version before the court is considered in juxtaposition to testimonies of other witnesses and that of eye witness. In view of the above, we are inclined to exercise discretionary powers in favour of the applicants. 7. Upon overall facts and circumstances, prima facie evidence oral as well documentary on record and period of imprisonment already undergone by the applicants, without commenting much on merit, we are inclined to grant bail by suspending the sentence. 8. The present applications are allowed. 7. Upon overall facts and circumstances, prima facie evidence oral as well documentary on record and period of imprisonment already undergone by the applicants, without commenting much on merit, we are inclined to grant bail by suspending the sentence. 8. The present applications are allowed. The applicants are enlarged on bail on their 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:— [a] The applicants shall not take undue advantage of their liberty or abuse their liberty. [b] The applicants shall not try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner. [c] Maintain law and order. [d] Surrender their passports, if any, to the lower Court, within a week. 9. In the meanwhile, the substantive sentence shall remain under suspension. Bail bond before the Trial Court. Rule is made absolute. Direct service is permitted.