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Gujarat High Court

Bharatbhai Mohanbhai Parmar vs State Of Gujarat on 4 April, 2014

Author: G.R.Udhwani

Bench: G.R.Udhwani

        R/CR.MA/4031/2014                                         ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 4031 of 2014
              In CRIMINAL APPEAL NO. 322 of 2013
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          BHARATBHAI MOHANBHAI PARMAR....Applicant(s)
                            Versus
                STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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        CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
                     Date : 04/04/2014
                               ORAL ORDER

1. Rule. Learned APP waives service.

2. By order dated 03.04.2013 passed in Criminal Misc. Application No.5108 of 2013 in Criminal Appeal No.322 of 2013, this Court enlarged applicant no.2 on bail in the said application by suspending the sentence against him. However, so far as the present applicant was concerned, the observations were made in Paragraph-9 reserving a liberty to the applicant to file another application under Section 389 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) for suspension of sentence after a period of one year from the date of the order. Thus, on expiry of one year, the applicant is before this Court with a fresh application.

3. Learned APP raised the preliminary objection of maintainability of this application. However, considering the liberty reserved to the applicant by the Court, the objection cannot be sustained.

R/CR.MA/4031/2014 ORDER

4. Learned counsel for the applicant has taken this Court through the various evidences as also findings of the Court below wherefrom, prima facie, it appears that the which arose on account of the deceased objecting to accused no.1 urinating on the terrace. The case of the prosecution is that after such objection, the accused persons crossed over to the terrace of the deceased and picked up the quarrel with him and other family members who intervened, and caused several injuries to them. So far as the present applicant is concerned, he is alleged to have knocked and beaten the deceased with pieces of tiles on few occasions during the scuffle. The deceased's wife was also beaten in the same manner by the applicant and as the deceased approached his wife for help, the applicant herein is alleged to have knocked him with force which resulted into deceased's fall over the three feet para- pit wall of the terrace, down to the ground causing serious injuries to the deceased. The deceased succumbed to the injuries before reaching the hospital.

5. The Trial Court in its judgment opined that the applicant did not intend to kill the deceased. However, considering the role played by the applicant, he was convicted for the offence punishable under Section 304 Part-I of Indian Penal Code ("IPC" for short) and other accused were convicted for the offence punishable under Section 304 Part-II of IPC. The argument in this application is that the Court having found lack of intention on the part of the applicant to kill him, the punishment could not have been imposed under Section 304 Part-I of IPC and that at the most, the punishment could have been imposed under Section 304 Part- II of IPC.

6. Learned APP vehemently opposed this application on the ground that the act attributed to the applicant had resulted into a Page 2 of 4 R/CR.MA/4031/2014 ORDER death of precious life which fact was established against the applicant beyond reasonable doubt. Relying upon the testimony of various witnesses, learned APP would contend that there was clear evidence, except minor so-called contradictions, for bringing home the guilt of the applicant.

7. In the circumstances mentioned hereinbefore, the question as to whether the applicant has rightly been convicted for the offence punishable under Section 304 Part-I of IPC, needs close scrutiny.

8. The applicant has already undergone a period of about more than 18 months. He was a young boy aged 29 years and in the facts and circumstances discussed in this order, it is not in the interest of justice to detain him behind the bars during the pendency of the appeal. The rest of the sentence is, therefore, required to be suspended. Accordingly ordered.

9. The applicant shall be enlarged on bail on his executing a fresh bail bond and surety in the sum of Rs.20,000/- (Rupees Twenty Thousand only) to the satisfaction of the Trial Court on the following terms and conditions that the applicant:

(a) shall deposit the passport, if any, with the Trial Court.

(b) shall undertake that he will make himself available in this appeal as and when required by the Court.

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

(d) fine if not paid, shall be deposited in the Trial Court.

10. Rule is made absolute with no order as to costs. Direct Service is permitted.

           R/CR.MA/4031/2014                     ORDER



                                            (G.R.UDHWANI, J.)
rakesh/




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