Gujarat High Court
Shankerbhai @ Nathan Karnapan Darbar & vs State Of Gujarat on 27 January, 2016
Author: Harsha Devani
Bench: Harsha Devani, G.R.Udhwani
R/CR.MA/1395/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 1395 of 2016
In CRIMINAL APPEAL NO. 1005 of 2014
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SHANKERBHAI @ NATHAN KARNAPAN DARBAR & 1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
DARSHAN M VARANDANI, ADVOCATE for the Applicant(s) No. 1 - 2
MS MINI M NAIR, ADVOCATE for the Applicant(s) No. 1 - 2
MS. HANSA PUNANI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 27/01/2016
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Rule. Ms. Hansa Punani, learned Additional Public Prosecutor, waives service of notice of rule on behalf of the respondent.
2. By this application under section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code"), the applicants (original accused No.1 and 4) seek suspension of the sentence imposed upon them vide judgement and order dated 28.3.2014 passed by the learned 8th Additional Sessions Judge (Ad hoc), Gandhidham-Kachchh in Sessions Case No. 51 Page 1 of 5 HC-NIC Page 1 of 5 Created On Fri Jan 29 01:06:10 IST 2016 R/CR.MA/1395/2016 ORDER of 2009 whereby the applicants have been convicted of the offence under section 302 read with section 114 of the Indian Penal Code and have been sentenced to undergo life imprisonment.
3. Ms. Mini Nair, learned advocate, for the applicants invited the attention of the court to the testimonies of the witnesses to submit that in terms of the testimony of the witness Shivani Munnuswami Rajput Madrasi, the accused No. 3 (Vanita wife of deceased Ravi) had inflicted knife injuries on the deceased and that no specific role has been attributed to the accused No. 1, 2 and 4 qua the fatal injuries. It was submitted that even if the prosecution case is accepted at its face value, the allegations against the accused No.1, 2 and 4 would not constitute the offence under section 302 of the Indian Penal Code. It was submitted that the conduct of the applicants after the happening of the incident clearly shows lack of guilt on their part which is evident from the testimony of witness Saraswati Munnuswami, sister of the deceased, wherein she has stated that the applicants herein were present at the hospital where the deceased was taken. It was further pointed out that the applicants have already undergone six years and nine months' imprisonment and that accused No. 1 is suffering from cancer. It was accordingly, urged that having regard to the facts and circumstances of the case, this court may exercise discretion in favour of the applicants and enlarge them on bail.
4. On the other hand, Ms. Hansa Punani, learned Additional Public Prosecutor, opposed the application by submitting that the prosecution has adduced sufficient evidence to establish the charge against the accused and that the trial court has, while convicting the applicants for the Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri Jan 29 01:06:10 IST 2016 R/CR.MA/1395/2016 ORDER offence under section 302 of the Indian Penal Code, given cogent and credible reasons in support thereof and hence no case has been made out for exercise of discretion in favour of the applicants.
5. Since this is an application for suspension of sentence and grant of regular bail, it is not necessary for the court to enter into any elaborate discussion on the merits of the case.
6. A perusal of the evidence on record shows that Shivani Munnuswami Rajput Madrasi who is stated to be an eyewitness, has deposed that it was the accused No. 3 who had inflicted knife blows on the deceased and after the deceased fell down, the accused No. 1 was pressing his leg against the injuries and the accused No. 2 was sitting on the head of the deceased and accused No. 4 herein was also beating him. From the testimony of the said eyewitness, prima facie, there is nothing to show that at the time when the accused No. 3 inflicted knife blows on the deceased, accused Nos. 1, 2 and 4 had caught hold of the deceased so as to aid the accused No. 3 in inflicting the fatal injuries.
7. As noticed earlier, the applicant No.1 is alleged to have pressed his leg against the knife injuries and the applicant No.4 is alleged to have beaten the deceased. However, on a perusal of the post mortem report, no corresponding injuries relating to the role attributed to the accused No.1, 2 and 4 can be seen. Under the circumstances, on merits, the applicants have made out a prima facie case for exercise of discretion in their favour. Moreover, as pointed out Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri Jan 29 01:06:10 IST 2016 R/CR.MA/1395/2016 ORDER by the learned advocate for the applicants, the applicants have already undergone six years nine months' imprisonment and the applicant No.1 is also stated to be suffering from cancer. Having regard to the aforesaid facts, this court is of the view that the applicants are entitled to the relief prayed for in the application.
8. The application, therefore, succeeds and is accordingly allowed. The sentence imposed by learned 8th Additional Sessions Judge (Ad hoc), Gandhidham-Kachchh in Sessions Case No. 51 of 2009 vide judgement and order dated 28.3.2014 is hereby ordered to be suspended till the pendency of the appeal and the applicants are ordered to be enlarged on regular on their executing a personal bond of Rs.20,000/- (Rupees twenty thousand only) subject to the following terms and conditions that they shall:
(a) not take undue advantage of their liberty or abuse their liberty;
(b) maintain law and order;
(c) surrender their passports, if any, to the lower court, within a week and if they do not possess any passport, then they shall make a declaration to that effect before the trial court;
(d) If during the pendency of the criminal appeal any change in their residential address, permanent or temporary, takes place, then the applicants shall intimate the same to the trial court as well as the concerned Police Station.
9. Bail before the trial court having jurisdiction.
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R/CR.MA/1395/2016 ORDER
10. However, it is made clear that any observations made while deciding this bail application will not affect merits of the case at the time of final arguments.
11. Rule is made absolute accordingly. Direct service is permitted.
(HARSHA DEVANI, J.) (G.R.UDHWANI, J.) (pkn) Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Jan 29 01:06:10 IST 2016