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2025 DIGILAW 1149 (GUJ)

Mafaji Ajuji Thakor v. State of Gujarat

2025-09-26

ILESH J.VORA, P.M.RAVAL

body2025
ORDER : P. M. RAVAL, J. 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. The applicant is before this Court against the conviction handed down upon him in Sessions Case No.264 of 2015 whereby learned 6 th Additional Sessions Judge, Banaskantha at Deodar vide judgment and order dated 30.6.2025 convicted the applicant for the offences punishable under sections 302, 307, 326, 324, 323 read with sections 143, 147, 148 and 149 of Indian Penal Code . 3. By way of the impugned judgment and order, learned trial Judge has convicted the applicant as follows : Offences Punishment Fine U/s 302 r/w 149 of IPC Life imprisonment Rs.5,000/-, in default, 6 months RI U/s 307 r/w 149 of IPC RI for 10 years Rs.3000/-, in default, 6 months RI U/s 324 r/w 149 of IPC RI for 1 year Rs.1000/- in default, 1 month RI U/s 143 IPC 1 month SI U/s 147 IPC 6 months SI Rs.500/- in default 1 month SI U/s 148 IPC 1 year SI Rs.500/- in default 1 month SI All the sentences were ordered to be run concurrently and set off was also granted by learned trial Judge under section 428 of CrPC. 4. Learned advocate Mr.Virat Popat for the applicant would submit that the complainant side is also convicted for the offences punishable under section 302 read with section 149 of IPC. That charge at Exh.2 dated 27.9.2007 read with complaint at Exh.413 dated 25.9.2002 would clearly point out that very vague charge is framed against the accused persons. That no specific role has been attributed to specific accused persons and that generalized and wholesome charge has been framed and despite this fact, learned trial Judge without considering individual role has convicted those accused who have not been attributed with any overt act. That specific role attributed of inflicting injury with scythe is attributed to Gagaji Vihaji Thakor, Dashrathji Raichand Thakor and Raichand Vihaji Thakor on head of deceased Valabhai Jalabhai Patel, whereas other co-accused persons have been attributed with either some grievous or simple injury, however, not attributed to the deceased, but other witnesses. That specific role attributed of inflicting injury with scythe is attributed to Gagaji Vihaji Thakor, Dashrathji Raichand Thakor and Raichand Vihaji Thakor on head of deceased Valabhai Jalabhai Patel, whereas other co-accused persons have been attributed with either some grievous or simple injury, however, not attributed to the deceased, but other witnesses. Learned advocate for the applicant also vehemently argued that despite learned trial Judge concluded that the present accused person along with other accused have formed unlawful assembly, however, learned trial Court without considering independent role has handed down conviction under section 302 of IPC for life imprisonment by invoking provisions of section 149 of IPC. That in all there are 28 accused persons who are convicted for the offence under section 302 read with section 149 of IPC of which accused Nos.7 and 21 in Sessions Case No.265 of 2015 have expired and their cases have been abated and thus all other 26 persons are in jail despite of the fact that specific role having been attributed to some of them having injured some of the witnesses while no role is attributed to the present accused. Under the circumstances, it is argued to allow the present application. 5. Mr.L.B.Dabhi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is submitted that merely because the complainant side in the present have also been convicted for the offence under section 302 read with section 149 of IPC and that in the present case also, learned trial Judge has believed the offence attracting the provisions of section 149 of IPC, it cannot be said that learned trial Court has committed an error in convicting the applicants, more particularly, when detailed reasoned judgment has been delivered by learned trial Judge by appreciating both documentary as well as oral evidence on record. Under the circumstances, when it is not permissible to reappreciate the evidence at the stage of suspension of sentence, learned APP has argued to reject the present application. 6. We have heard learned advocates for the respective parties and also gone through the impugned judgment and order. 7. The issue arises as to whether the applicant has made out a case for suspension of sentence or not? 8. We have gone through the impugned judgment and order. 6. We have heard learned advocates for the respective parties and also gone through the impugned judgment and order. 7. The issue arises as to whether the applicant has made out a case for suspension of sentence or not? 8. We have gone through the impugned judgment and order. In a serious offence of attracting the punishment under Section 302 of IPC, the Appellate Court has to assess the record only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Another, reported in (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under : “30. In Kishori Lal v. Rupa [ Kishori Lal v. Rupa , (2004) 7 SCC 638 ), this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6) "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 ], it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002) 9 SCC 364], it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 1PC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 9. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order. It transpires that no specific role has been attributed to the applicant – Mafaji Ajuji Thakor of inflicting injury on the deceased. However, general allegation of inflicting injury has been attributed and bamboo stick is recovered at the instance of the present applicant. Under the circumstances, without entering into the merits and de-merits of the case at this stage which would prejudice the case of either side and from the record of the case, it transpires that it is a case of free fight and as per the settled principle of law that question of conviction with the aid of section 149 of IPC does not arise. More over, no right of private defence is available in case of free fight to either party and each individual is responsible for his own act. Thus, prima facie, we are of the opinion that it is a case of free fight where both the sides have lost one life. Hence also, conviction with the aid of section 149 of IPC seems to be prima facie not attracted in the facts of the present case coupled with the fact that we do not see any fair chance of appeal being taken up for final hearing in near future. Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicant and to enlarge him on bail pending Criminal Appeal. It is required to be noted that the observations made hereinabove are tentative in nature and made only for the purpose of deciding the present application for suspension of sentence. 10. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 30.6.2025 by the learned 6 th Additional Sessions Judge, Banaskantha at Deodar in Sessions Case No.264 of 2015 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court subject to conditions that : (a) he shall not take undue advantage of the liberty or misuse the liberty; (b) he shall not leave India without the prior permission of the concerned Sessions Court; (c) he shall furnish the present address of his residence to the court concerned at the time of execution of the bond and shall not change the residence without the prior permission of the concerned Sessions Court. (d) he shall proceed with the Criminal Appeal as and when it may be listed. 11. Rule made absolute to the aforesaid extent. Direct service is permitted.