Gujarat High Court
Kishorsinh Motilal Rathod vs State Of on 30 April, 2013
Author: M.R. Shah
Bench: M.R. Shah
KISHORSINH MOTILAL RATHOD....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.MA/6460/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 6460 of 2013 In CRIMINAL APPEAL NO. 48 of 2011 ============================================= KISHORSINH MOTILAL RATHOD....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ============================================= Appearance: MR SHRIKAR H BHATT, ADVOCATE for the Applicant(s) No. 1 MR LB DABHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 30/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) RULE.
Shri L.B. Dabhi, learned APP waives service of notice of Rule on behalf of respondent State of Gujarat. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of respective parties, present application is taken up for final hearing today.
[1.0] Present application under Section 389 of the Code of Criminal Procedure, 1973 has been preferred by the applicant herein original accused No.1, who has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ) and sentenced to undergo life imprisonment, for suspension of sentence and to enlarge him on regular bail during the pendency and final hearing of the above numbered criminal appeal.
[2.0] At the outset it is required to be noted that the very learned advocate Shri Bhatt earlier preferred Criminal Miscellaneous Application No.300/2011 for the very relief i.e. to suspend the sentence and release him on bail and the Division Bench by speaking detailed reasoned order dated 19.01.2011 has been pleased to dismiss the said application. It appears that feeling aggrieved and dissatisfied with the order dated 19.01.2011 passed by this Court in Criminal Miscellaneous Application No.300/2011, the applicant preferred Special Leave Petition before the Hon ble Supreme Court. There was a delay in preferring the Special Leave Petition and therefore, application for condonation of delay in preferring the Special Leave Petition was submitted and recently by order dated 18.02.2013, the Hon ble Supreme Court has dismissed the Special Leave Petition both on the ground of delay as well as on merits. However, by dismissing the said SLP on the ground of delay as well as on merits, the Hon ble Supreme Court has observed that the applicant may renew his prayer for suspension of sentence and grant of bail before the High Court itself within a period of two months from dismissal of the SLP, the applicant has preferred the present application.
[3.0] Shri Shrikar Bhatt, learned advocate appearing on behalf of the applicant has made the same submissions which were made at the time of hearing of Criminal Miscellaneous Application No.300/2011. It is submitted by Shri Bhatt, learned advocate appearing on behalf of the applicant that as such the learned trial Court has not considered the TI parade at all and therefore, the applicant deserves to be released on bail. It is submitted that as such the prosecution put up two stories before the Court and the learned Judge has failed to consider the above. It is further submitted that even otherwise there are major contradictions in the deposition of the complainant i.e. the FIR and the deposition. It is submitted that the learned Judge ought to have considered that brother and mother of the deceased were informed and identity of the accused was made known by photos of the applicant and therefore, the applicant is required to be released on bail.
No other submissions have been made.
[4.0] Present application is opposed by Shri L.B. Dabhi, learned APP appearing on behalf of the respondent State of Gujarat. It is submitted that as such the earlier application of the applicant for the very relief has been rejected by the Division Bench by detailed reasoned order and the said order has been confirmed on merits by the Hon ble Supreme Court. It is submitted that at the relevant time, learned advocate appearing on behalf of the applicant made all the submissions on merits and the Division Bench considered the same and thereafter, by a speaking reasoned order, the application has been rejected and as stated herein above, which has been confirmed by the Hon ble Supreme Court on merits. It is submitted that therefore, it is not open for the applicant now to make same submissions which were made earlier and not accepted by the Division Bench. It is submitted that as such no fresh cause has been shown and there are no changed circumstances. It is submitted that as such in the present case complainant Gitaben (PW-1) has identified the accused in the TI parade. It is further submitted that the evidence of complainant Gitaben (PW-1) get corroboration from evidence of PW-11, who is also eye-witness. It is submitted that it is not correct to say that the learned Judge has not considered the TI parade at all. It is submitted that as earlier rightly observed by the Division Bench, the submissions which were made by the learned advocate of the applicant are all defences which are to be considered at the time of final hearing while re-appreciation of evidence on record. Therefore, it is requested to dismiss the present application.
[5.0] Heard the learned advocates appearing on behalf of respective parties at length. At the outset it is required to be noted that earlier the very applicant through very learned advocate Shri Bhatt preferred Criminal Miscellaneous Application No.300/2011 for the very relief i.e. to suspend the sentence and release him on bail and at that time the learned advocate appearing on behalf of the applicant made submissions on merits and dealing with the same by speaking and reasoned order the Division Bench had dismissed the aforesaid bail application and the said order has been confirmed by the Hon ble Supreme Court on the ground of delay as well as on merits. Again the learned advocate has preferred the present application and made the same submissions which were made at the time of hearing of Criminal Miscellaneous Application No.300/2011 which are not accepted by the Division Bench and the earlier bail application came to be dismissed. Therefore, as such it is not open for the applicant to make the same submissions which were earlier made and not accepted by the Division Bench while rejecting the Criminal Miscellaneous Application No.300/2011.
[5.1] Despite the above, we have considered the submissions made by the learned advocate recorded herein above. We have also perused the impugned judgment and order. Complainant Gitaben (PW-1) has specifically identified the applicant in the TI parade and her deposition is corroborated by another witness PW-11, who is also an eye-witness. As such we do not see any material contradictions in the deposition of the complainant which vitiates the case of the prosecution and/or which creates doubt with regard to credibility of PW-1.
[5.2] Whatever the submissions are made with respect to the TI parade, are all submissions which are required to be considered at the time of final hearing while re-appreciating the entire evidence on record. Under the circumstances, as such we see no reason to take a contrary view than the view taken by the earlier Division Bench while deciding Criminal Miscellaneous Application No.300/2011. Considering the case on merits and the deposition of PW-1 and PW-11 and that they have identified the accused in TI parade and other corroborative evidences, we are also of the opinion that the sentence awarded to the accused cannot be suspended and the accused cannot be released on regular bail during the pendency and final hearing of the Criminal Appeal.
[6.0] In view of the above, the present application lacks merit and the same deserves to be dismissed and is, accordingly, dismissed. However, it is observed and made clear that no observations made herein above shall be construed as expression of opinion on merits of the appeal and any observations made herein above shall be treated as tentative while deciding the bail application and it goes without saying that appeal shall be decided strictly in accordance with law and on merits and after appreciation of entire evidence on record.
With this, present Criminal Miscellaneous Application is dismissed. Rule is discharged.
(M.R.SHAH, J.) (S.H.VORA, J.) Ajay Page 5 of 5