Kanubhai @ Kirit Virsingbhai Mahida vs State Of Gujarat

A.J.Desai, J

By way of the present application under Section 389 of Criminal Procedure Code, the applicant - appellant seeks suspension of sentence pending Criminal Appeal No.221 of 2021 arising out of the judgement and order dated 25/09/2018 passed by the learned Sessions Judge, Mahisagar, at Lunawada in Sessions Case No.154 of 2017. Learned Trial Court has convicted the applicant along with another accused for the offence punishable under section 302 & 201 of the Indian Penal Code and Section 135 of the Gujarat Police Act and sentenced to undergo life imprisonment and fine of Rs.50,000/- (Rupees Fifty Thousand only) each and in default of payment of fine, shall undergo R.I for two years. Learned Trial Court also imposed compensation of Rs.1,00,000/- to be paid by the applicant to the legal heirs of the deceased.

Mr.Pratik Barot, learned advocate for the applicant has drawn our attention to the evidence led before the learned trial court as well as the order dated 05/07/2019 passed by co-ordinate bench of this Court in Criminal Misc. Application No.1 of 2019 in Criminal Appeal No.669 of 2019, by which, conviction imposed by the trial court against co-accused namely Kantibhai Kalabhai Charel has been suspended and the convict has been enlarged on bail during the pendency of the appeal. Mr.Barot, learned advocate for the applicant has taken us through the deposition of witnesses and reasoning part of the judgment. He would submit that the case is based on circumstantial evidence and prosecution has miserably failed to establish the case against the applicant by completing the chain of circumstances and only and only on the basis of suspicion, the applicant cannot be convicted and sentenced. He would further submit that out of 20 witnesses examined by the prosecution, 15 witnesses including panch witnesses and close relative of the deceased, have not supported the case of the prosecution. He would submit that none of the witnesses have seen the incident. He would submit that the case put forward by the prosecution is that the applicant and Kantibhai had inflicted stone blow on the head of the deceased. He would submit that considering all the aspect, conviction and sentence imposed upon the said Kantibhai has been suspended by coordinate bench of this Court vide order dated 05/07/2019 in Criminal Misc. Application No.1 of 2019 in Criminal Appeal No.669 of 2019 and therefore on the ground of parity also, conviction and sentence imposed by the trial court may be suspended and the applicant may be enlarged on bail during the pendency of the appeal.

Mr.Dharmesh Devnani, learned Additional Public Prosecutor appearing for the respondent- State has taken us through the deposition of the close relatives of the deceased and would submit that they have not supported the case of the prosecution however, they have stated that the present applicant was last seen together in the area of crime. He would submit that chain of circumstances, pointing towards the guilt of the applicant has been duly established and therefore, this application may be rejected.

Heard learned advocate Mr.Pratik Barot for the applicant - appellant and the learned Additional Public Prosecutor for the State. On scrutinizing the case in detail, prima facie, it appears that there are no eye witness to the incident and there is no witness of lastly seen together. We have also gone through the reasoning part of the order dated 05/07/2019 passed by co-ordinate bench of this Court in Criminal Misc. Application No.1 of 2019 in Criminal Appeal No.669 of 2019, by which, co-accused namely Kantibhai Kalabhai Charel, who alleged to have been played similar role, has been enlarged on bail during the pendency of the appeal.

Having regard to the facts and circumstances of the case and to the submissions made by the learned Advocates for the parties, we are of the opinion that the present application deserves to be granted. Accordingly, the present application is allowed.

In view of the above, it is directed that the execution of the judgement and order dated 25/09/2018 passed by the learned Sessions Judge, Mahisagar, at Lunawada in Sessions Case No.154 of 2017 shall remain suspended pending the appeal qua the present applicant - appellant namely Kanubhai @ Kirit Virsingbhai Mahida and that he shall be released on bail pending the appeal subject to the following conditions :-

(i) The applicant shall furnish the bond of Rs.10,000/- (Rupees Ten Thousand only) and surety of the like amount and also furnish his full and correct present and permanent address, if any, along with the contact number.

(ii) The applicant shall deposit his passport, if any, before the concerned Sessions Court.

(iii) The applicant shall not take undue advantage of his liberty or abuse his liberty and shall maintain law and order.

Rule is made absolute. A copy of the order be sent to the concerned Sessions Court as well as to the concerned Police Station immediately.