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2022 DIGILAW 124 (GUJ)

Arjunbhai Mohanbhai Rathwa v. State of Gujarat

2022-01-20

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. By preferring present appeal, appellant has requested to quash and set aside the judgment and order dated 21.12.2021 passed by learned Sessions Judge, Surat in Sessions Case No. 305 of 2015 convicting the appellant for the offence punishable under Section 304 of the Indian Penal Code and appellant be set at liberty forthwith. 2. Heard learned advocate for the appellant. 3. It was submitted by learned advocate for the appellant that the learned Judge has oversight the material facts and circumstances of the case while convicting the appellant as evidence, depositions were not rightly considered. That, appellant is wrongly convicted for the offence punishable under Section 304 of the Indian Penal Code as however, it was accepted that whole incident was sudden, without any pre-plan or without pre-determine in nature. It was further submitted that the appellant has not abused or altered instigated words to the deceased during the incident and dispute was not intense in its nature. It was further submitted that contradictory and unreasonable view point was accepted by the learned Sessions Judge in light of the medical evidence. It was submitted that after preliminary treatment, wife and son of the deceased were returned back to home and in the evening, deceased felt headache after dinner, therefore, complainant had given deceased a head massage. 4. Issue requires consideration. 5. ADMIT. Learned APP waives service of notice of admission for and on behalf of the respondent-State. ORAL ORDER IN CRIMINAL MISC. APPLICATION NO. 1 OF 2022: 6. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 7. By preferring present application under Section 389 of the Code of Criminal Procedure, applicant has prayed to stay and suspend the judgment and order dated 21.12.2021 passed by learned Sessions Judge, Surat in Sessions Case No. 305 of 2015 convicting the applicant for the offence punishable under Section 304(2) of the Indian Penal Code and release the applicant on bail till hearing and final disposal of the captioned appeal. 8. Heard learned advocate for the applicant and learned APP for the respondent-State. 9. It was submitted by learned advocate for the applicant that the learned Judge has oversight the material facts and circumstances of the case while convicting the applicant as evidence, depositions were not rightly considered. 8. Heard learned advocate for the applicant and learned APP for the respondent-State. 9. It was submitted by learned advocate for the applicant that the learned Judge has oversight the material facts and circumstances of the case while convicting the applicant as evidence, depositions were not rightly considered. That, applicant is wrongly convicted for the offence punishable under Section 304(2) of the Indian Penal Code as however, it was accepted that whole incident was sudden, without any pre-plan or without pre-determine in nature. It was further submitted that the applicant has not abused or altered instigated words to the deceased during the incident and dispute was not intense in its nature. It was further submitted that contradictory and unreasonable view point was accepted by the learned Sessions Judge in light of the medical evidence. It was submitted that after preliminary treatment, wife and son of the deceased were returned back to home and in the evening, deceased felt headache after dinner, therefore, complainant had given deceased a head massage. 10. It was further submitted by learned advocate for the applicant that the applicant was released on regular bail during the entire trial and there is no adverse against the present applicant. It was further submitted that appeal preferred by the applicant has already been admitted by this court and it would take considerable long period for final hearing of this appeal and therefore, the judgment and order of sentence is required to be suspended and the applicant may be released on bail during the hearing and final disposal of the captioned appeal. 11. Learned APP for the respondent-State has objected the submissions made by learned advocate for the applicant and submitted that after recording evidence of the prosecution, learned Sessions Court has rightly convicted the present applicant and therefore, the prayer made in this application may not be granted by this court. 12. Having heard learned advocate for the applicant as well as learned APP for the respondent-State, it appears that the applicant is sentenced for the offence punishable under Section 304(2) of the Indian Penal Code awarding 3 years simple imprisonment and fine of Rs. 1000/-. It appears that the applicant was released on bail during the entire trial and no adverse was found against him. 1000/-. It appears that the applicant was released on bail during the entire trial and no adverse was found against him. It further appears that the appeal has already been admitted by this court and it should take considerable time for final hearing and till then, the present of the applicant was not required in judicial custody. As per submission of learned advocate for the applicant, the order of sentence passed by the trial court was suspended by the court below up to 21.01.2022. Hence, prayer made by the applicant in the present application requires consideration. 13. Accordingly, present application stands allowed. The impugned judgment and order dated 21.12.2021 passed by learned Sessions Judge, Surat in Sessions Case No. 305 of 2015 sentencing the applicant for the offence punishable under Section 304(2) of the Indian Penal Code shall be suspended till the hearing and final disposal of the Criminal Appeal No. 149 of 2022 and the applicant is ordered to be released on bail on same terms and conditions as were prescribed by the trial Court; but with fresh bail bond and surety. 14. Rule is made absolute to the aforesaid extent. Direct service is permitted.