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2025 DIGILAW 182 (GUJ)

Jamirkhan Parbatkhan Bhanderi v. State of Gujarat

2025-02-28

ILESH J.VORA, SANDEEP N.BHATT

body2025
ORDER : ILESH J. VORA, J. 1. Rule. Learned APP waives service of Rule on behalf of respondent-State. By consent, Rule is fixed forthwith. 2. We have heard Mr. Nirad Buch, learned counsel for the applicant and Ms. Dhwani Tripathi, learned APP for the respondent-State. 3. By way of this application under Section 389(1) of the Code of Criminal Procedure, 1973, applicant Jamirkhan Bhanderi, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 201 and 328 of the IPC. 4. The present appeal and the application for suspension of sentence arise from the judgment dated 14.02.2022 and order of sentence passed in Sessions Case No.37 of 2018, whereby, the applicant herein was convicted and sentenced as under: (i) Sections 302 of IPC: R.I. for life and fine of Rs.25,000/- and in default thereof, further imprisonment for 2 years; (ii) Section 201 of IPC: 5 years R.I. and fine of Rs.5,000/-and in default thereof, further imprisonment for 1 year; (iii) Section 328 of IPC: 10 years R.I. and fine of Rs.5,000/- and in default thereof, further imprisonment for1 year; 5. Facts and circumstances giving rise to file present application is that, the applicant-accused Jamirkhan was in relation with PW.11 Hinaben Vaghela who was married to deceased Vaghuji Mahipatsinh. The accused and the deceased were belongs to same village namely Hathaj, Kheda at Nadiad. The deceased was the friend of the accused Jamir and that is why the relationship with the wife of the deceased gradually developed. In these background facts, in order to marry each other, the presence of the husband was the hurdle and therefore, the accused conspired to kill the deceased and in order to eliminate him, with the aid of two persons namely Vasimkhan and Altaf Pathan, took the deceased in their rickshaw. The rickshaw was driven by the applicant Jamir and deceased along with two accused, was at the backside of the rickshaw. The co-accused Vasim, at the instance of applicant purchased cold drinks from the nearby shops as referred in the case papers and after mixing the slipping pills in the cold drinks, the deceased was asked to drink the cold drinks and thereafter he was offered to drink wine. The co-accused Vasim, at the instance of applicant purchased cold drinks from the nearby shops as referred in the case papers and after mixing the slipping pills in the cold drinks, the deceased was asked to drink the cold drinks and thereafter he was offered to drink wine. When the deceased fell unconscious, the rickshaw was taken on the way from Bareja towards Kheda, the accused took Rs.4700/- from the pocket of the deceased as well as his Intex mobile phone and thereafter with the break wire, he was strangulated to death. The dead body of the deceased thrown near the canal. The wife of the deceased who could not conceive since the date of marriage, went to the hospital where her treatment was going on and was in contact with the deceased on mobile phone. On the next day i.e. on 10.01.2018, deceased had to come to the parental house of the wife as his presence for treatment was necessary. The mobile phone of the deceased was switched off. The wife PW.11 called the accused Jamir about the whereabouts and she was informed by him that the deceased was with him and thereafter, the deceased disappeared. The brother of the deceased came to know after 3 days from the police that the dead body of the deceased was lying in the canal. The family along with the complainant brother went to the place. The dead body of the deceased found in a decomposed manner. However, the break wire found from the neck of the deceased. In such circumstances, the police registered a case of murder against the unknown persons. During the investigation, the police found that, the applicant Jamir who was in relations wit the wife of deceased, have hatched the conspiracy to kill the deceased and in order to execute the conspiracy, he along with two others orchestrated the murder of the deceased as referred above. The investigating agency mainly relied on the hotel records to prove the relations of the PW.11 and the accused Jamir. The discovery of break wire and confessional statement of the accused allegedly made in terms of Section 27 of the Evidence Act. The police also obtained the CCTV footage of the petrol pump where the gas was filled up in the rickshaw and the presence of two accused found in the footage. The discovery of break wire and confessional statement of the accused allegedly made in terms of Section 27 of the Evidence Act. The police also obtained the CCTV footage of the petrol pump where the gas was filled up in the rickshaw and the presence of two accused found in the footage. The police had obtained the CDR records from the service provider. Based on the aforesaid evidence, three accused were chargesheeted and tried by the sessions court. The court below mainly relied on the deposition of the deceased -PW.11 and discovery and recovery panchnama and in absence of any explanation, raising inference that the accused-applicant was the author of the crime, whereas, accused no.2 and 3 in absence of sufficient evidence against them, by giving benefit of doubt, acquitted of all charges. 6. Mr. Nirad Buch, learned counsel appearing for and on behalf of the applicant-accused, while praying for suspension of sentence contended that, the applicant has undergone almost 7 years of his jail term and till date, there are no chances of appeal being heard in near future. He would further urge that, the entire prosecution case rests on the circumstantial evidence and considering the peculiar facts and circumstances of the case, the prosecution failed to prove the chain of circumstances beyond all manner of doubt. Except the relationship with the wife of the deceased, nothing on record to suggest that, the accused is the author of the crime. The recovery of break wire is also doubtful as there is no corroboration from the medical evidence that the same was used for strangulation and it was not shown to the doctor and the possibility of use of such wire is not ruled out by the FSL and other authorities. The CCTV footage of petrol pump does not prove the presence of the accused in the rickshaw. The CDR records does not pointing to the complicity of the accused. The factum of administration of the sedative drugs and consumption of liquor has not been proved and established. In such circumstances, he prays that, the theory of last seen together believed by the court below on the basis of conversation of PW.11 with the accused is contrary to the evidence on record as there is nothing on record to prove that the deceased was lastly in the company of the accused. In the circumstances, as referred above, learned counsel Mr. In the circumstances, as referred above, learned counsel Mr. Buch has submitted that the conviction has been rendered on the basis of conjunctures and suspicion and therefore, there are all chances in succeeding in the appeal and when there is no possibility of the appeal being heard in near future, the case of the applicant as prayed, may be considered. 7. On the other hand, opposing the contention, Ms. Dhwani Tripathi, learned APP has submitted that, the contention as raised cannot be examined at this stage and considering the relations of the applicant with the wife of the deceased and the other incriminating circumstances proved by the prosecution, the findings of the conviction cannot be termed as perverse. Thus, she would urge that, no case is made out for exercising judicial discretion. 8. Having regard to the facts and circumstances of present case, the issue arises for our consideration as to whether the applicant has made out a case for suspension of sentence? 9. We have considered the submissions of the rival parties and the case records as well as findings of trial court. We take notice of the fact that, the PW.11 was having relations with the applicant Jamirkhan as prior to the incident, they were in company of each other at the hotel referred by the court below. However, having regards to the evidence on record, we are of the prima-facie view that, the break wire discovered was not referred to the PM Doctor for its independent opinion, nor anything found on it to infer that the same was used for killing the deceased and the CDR records does not directly pointing to the complicity of the accused along with the evidence of CCTV footages. It is relevant to note that, there is no evidence of administering the poisonous substance for which the accused was convicted under Section 328 of the IPC. 10. In the aforesaid circumstances and considering peculiar facts and circumstances of the case, when the applicant has undergone 7 years of his imprisonment and there is no likelihood of the appeal being heard in near future, without much discussion on merits of the case, we are persuaded to exercise our judicial discretion in favour of the applicant. 11. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. 11. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 14.02.2022 by the learned Additional Sessions Judge, Nadiad in Sessions Case No.37 of 2018 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.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted. The observations made hereinabove are confined to the adjudication of this application and are tentative and prima-facie in nature.