Gujarat High Court
Thakor Dalpatji @ Dapaji Kantiji @ D. K. vs State Of Gujarat on 9 April, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
R/CR.A/489/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 1 of 2019
In
R/CRIMINAL APPEAL NO. 489 of 2019
=============================================
THAKOR DALPATJI @ DAPAJI KANTIJI @ D. K. Versus STATE OF GUJARAT ============================================= Appearance:
MR PRATIK B BAROT FOR MITTAL N PATEL for the PETITIONER(s) No. MR NIMESH M PATEL for the PETITIONER(s) No. MS DELNAZ B SHETHNA for the PETITIONER(s) No. MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ============================================= CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 09/04/2019 IA ORDER (PER : HONOURABLE MR.JUSTICE A.C. RAO)
1. This is an application under Section 389 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") at the instance of an applicant-convict (original accused no.1) seeking suspension of the substantive order of sentence of life imprisonment passed by the Additional Sessions Judge, Patan dated 20th April, 2017 in the Sessions Case No.70 of 2013.
2. We take notice of the fact that in all three accused including the applicant herein were put on trial for the Page 1 of 8 R/CR.A/489/2019 IA ORDER offences punishable under Sections 302, 364 read with Section 114 of the Indian Penal Code (for short "the IPC"). We also take notice of the fact that all the three accused put on trial including the applicant herein came to be convicted for the offences punishable under Sections 302, 364 read with Section 114 of the IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.5,000/-. In default of the payment of fine, to suffer further simple imprisonment for one month. They were also convicted for the offence punishable under Section 364 of the IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-.
3. It is the case of the prosecution that, the deceased was abducted by the applicant-convict in a car and after two and half hours the dead-body was found.
4. Mr. Pratik Barot, the learned counsel appearing on behalf of Ms. Mittal N. Patel, the learned counsel for the applicant-convict submitted that the incident in question took place on 07.05.2013. The co-convict namely Jalaji Kantiji Thakore (original accused no.2) had filed Criminal Misc.
Applications No.13555 of 2017 in Criminal Appeal No.742 of Page 2 of 8 R/CR.A/489/2019 IA ORDER 2017 and another co-convict namely Ganpatji Mafaji Thakore (original accused no.3) had filed Criminal Misc. Application No.18665 of 2017 in Criminal Appeal No.992 of 2017, wherein they have been enlarged on bail by the co-ordinate Bench of this Court vide common order dated 28.11.2017. The order reads thus :
"Heard learned counsels for the applicants.
2 Rule. Learned APPs waive service of notice of rule on behalf of respondent - State of Gujarat.
3 Both these applications are preferred by the applicants - convicts - appellants - original accused Nos.2 and 3 of Sessions Case No.70 of 2013 which was tried in which conviction under Section 302, 364, 114 was recorded sentencing three accused for life imprisonment, 10 years of RI, fine, etc. and all sentences were ordered to run concurrently.
4 Learned counsels Mr. Chetan Pandya and Jayprakash Umot, appearing for applicants in these applications for suspension of sentence and grant of bail would contend that the incident in question took place on 07.05.2013 in which accused No.1 was initially named and two other unknown persons who later on turned out to be accused Nos.2 and 3, the applicants herein. It is further submitted that initially in first two statements made by PW4 and eye witness to the incident i.e. on 11.05.2013 and 18.05.2013, names of the applicants were not disclosed. That apart, testimonies of PW4 if perused prima facie for the purpose of considering these applications create doubt even about his presence at the scene of offence and his conduct is not natural inasmuch as though his brother-in-law was being beaten and kidnapped in a Maruti car, he has gone back to his residence without making any effort either to intervene or to inform the police authority and thereafter received information from elder brother-in- law about beating of victim who was later on found dead. That arrest of the accused Nos.2 and 3 almost after 2 months and other material to which learned trial Judge has addressed himself to connect the applicants Page 3 of 8 R/CR.A/489/2019 IA ORDER with crime including that of witnesses PW3, PW8, PW28, PW29 and PW30 happened to be relatives, and even in their testimonies they came to know about the incident later on and even PW8 brother, PW28 father and PW30 wife of deceased failed to identify the deceased. Our attention is drawn to other evidence, including injuries on the body of the deceased as deposed by PW2, who performed postmortem and it is submitted that during the trial the present applicants were considered for bail and the appeals filed by them will be heard in due course and at least not in near future and, therefore, they may be considered for suspension of sentence and bail may be granted.
5 Learned APP, however, contend that PW4 not only named accused No.1 since beginning and other accused though initially were unknown persons, but later on turned to be accused Nos.2 and 3, applicants herein, for which cogent and convincing evidence appear on record and injuries reflect in postmortem report provide corroboration to the testimonies of PW4 and PW5. That, time which has elapsed for arresting the accused was due to nonavailability of the accused and that itself is no ground to disbelieve the case of the prosecution. It is further submitted that testimonies of eye witness PW4 along with other corroborating material was found to be sufficient to convict the present applicants by the learned trial Judge and alternatively appeals can be heard at the earliest the present applications deserve to be dismissed. 6 Having heard learned counsels for the applicants and on perusal of the relevant record, including judgment and order of conviction and sentence, conclusions drawn by learned trial Judge about guilt of the accused, we have persuaded at this stage to exercise powers under sections 389 of the Code without giving detailed analysis or any comment on merit on creditworthiness of testimonies of PW4 at this stage which include his presence at the scene of offence, and in first two statements names of present applicants - accused Nos.2 and 3 were not disclosed and belated efforts made to rope the applicants in the crime and if his version before the court is considered in juxtaposition to testimonies of other witnesses and that of eye witness. In view of the above, we are inclined to exercise discretionary powers in favour of the applicants.
6.1 Upon overall facts and circumstances, prima facie Page 4 of 8 R/CR.A/489/2019 IA ORDER evidence oral as well documentary on record and period of imprisonment already undergone by the applicants, without commenting much on merit, we are inclined to grant bail by suspending the sentence.
7 The present applications are allowed. The applicants are enlarged on bail on their furnishing a solvent surety of Rs.10,000/( Rupees Ten thousand) each and personal bond of the like amount on usual terms and on the following further conditions:
[ a] The applicants shall not take undue advantage of their liberty or abuse their liberty. [b] The applicants shall not try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner.
[c] maintain law and order.
[d] surrender their passports, if any, to the lower Court, within a week.
8 In the meanwhile, the substantive sentence shall remain under suspension. Bail bond before the Trial Court. Rule is made absolute. Direct service is permitted."
4.1 Mr. Barot, the learned counsel submitted that the only evidence against the applicant herein is that he was one of the members who had abducted the deceased in the car. There is no other evidence involving the applicant herein in the commission of the alleged offence and the other witnesses have turned hostile. Therefore, the applicant herein may be released on bail on the ground of parity with other co-accused who have played similar role in the commission of the alleged offence.
Page 5 of 8R/CR.A/489/2019 IA ORDER
5. Mr. Patel, the learned APP appearing on behalf of the respondent - State has opposed this application for suspension of the sentence and submitted that the other co-
accused who have been released on bail were not named in the FIR, while the applicant herein has been named in the FIR by the complainant and other witnesses. Mr. Patel submitted that there is a motive attributed to the present applicant as there was a rivalry of business of liquor between the present applicant and the deceased. It is submitted that the car was recovered at the instance of the applicant herein. Under the circumstances, the present application is required to be rejected.
6. Having heard the learned counsel appearing for the parties and having perused the relevant record, including the judgement and order of conviction and sentence, and the order passed by the co-ordinate Bench in the case of co-
convicts, it appears that except the evidence that the applicant and the co-accused had abducted the deceased and the car was found at his instance, there is no other evidence against the applicant herein to connect him with the crime.
The circumstance of the deceased last seen with the accused persons give rise to strong suspicion but suspicion howsoever Page 6 of 8 R/CR.A/489/2019 IA ORDER strong cannot take place of proof. There is no sufficient evidence to establish the motive of the applicant herein to commit the crime.
6.1 Upon overall facts and circumstances, prima facie evidence, oral as well as documentary, on record and without commenting much on merits, we are inclined to release the applicant herein on bail by suspending the sentence.
7. In the result, this application is allowed. The applicant-
accused is enlarged on bail on executing a bond of Rs.10,000=00 (Rupees Ten Thousand Only) with a solvent surety of the like amount to the satisfaction of the Trial Court and subject to the conditions that;
(a) The applicant shall not take undue advantage of or abuse his liberty.
(b) The applicant shall not try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner.
(c) The applicant shall maintain law and order.
(d) The applicant shall surrender his passport, if any, to the lower court within a week.
Page 7 of 8R/CR.A/489/2019 IA ORDER
8. As we have ordered the release of the applicant-convict on bail, the substantive order of sentence passed by the trial court shall remain suspended till the final disposal of the criminal appeal.
9. Bail bond before the trial Court. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J. B. PARDIWALA, J) (A. C. RAO, J) Dolly Page 8 of 8