Gujarat High Court
Jayeshbhai @ Chintu Narshibhai Patel & vs State Of Gujarat on 13 April, 2015
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, R.D.Kothari
R/CR.MA/5502/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
5502 of 2015
In CRIMINAL APPEAL NO. 802 of 2014
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JAYESHBHAI @ CHINTU NARSHIBHAI PATEL & 1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR YS LAKAHANI, Sr. Advocate WITH MR PRAVIN GONDALIYA,
ADVOCATE for the Applicant(s) No. 1 - 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 13/04/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. Rule. Learned APP Mr.H.K.Patel waives service of Rule on behalf of respondent - State.
2. The present application is filed by one Jayeshbhai @ Chintu Narshibhai Patel and Narshibhai @ Nareshbhai Vasrambhai Patel seeking following reliefs :
"9(B) allow this Criminal Misc. Application by suspending the sentence u/s.389 of the Code of Criminal Procedure and thereby enlarge the applicants Page 1 of 7 R/CR.MA/5502/2015 ORDER on bail pending hearing and till final disposal of Criminal Appeal No.802 of 2014 on suitable terms and conditions in the interest of justice."
3. The applicants - original accused Nos.4 and 5 are convicted for offence under Sections 143, 147, 148, 149, 324, 307 and 302 of IPC and Sections 37(1) r/w Section 135(1) of the Bombay Police Act and they are awarded life imprisonment with fine of Rs.20,000/- each and in default, 9 months SI; and for offence under Section 307 of IPC, 7 years RI with fine of Rs.10,000/- and in default, six months SI; for offence under Section 324 of IPC, 1 year RI; for offence under Section 143 of IPC, six months RI; for offence under Section 147 of IPC, 2 years RI; for offence under Section 148 of IPC, 2 years RI; for offence under Section 149 of IPC, 2 years RI; for offence under Section 37(1) of Bombay Police Act, 15 days years RI and for offence under Section 135(1) of Bombay Police Act, 15 days RI. The learned Judge was pleased to order that all these sentences to run concurrently.
4. Learned Senior Advocate Shri Y.S.Lakhani invited attention of the Court to the case of the prosecution. He very empathetically submitted that it is true that initially, the prosecution filed the case against as many as five persons alleging the offence under Sections 143, 147, 148, 149, 324, 307 and 302 of IPC and Sections 37(1) r/w Section 135(1) of the Bombay Police Act but, the trial court convicted the original accused Nos.1 and 2 only for offence under Sections 143 and 147 of IPC and not for Section 149. He further submitted that after having done that, the trial court still maintained the conviction for original accused Nos.3, 4 and 5 Page 2 of 7 R/CR.MA/5502/2015 ORDER for offence under Section 149 and awarded sentence for various offences mentioned hereinabove.
4.1 Learned Senior Advocate, Shri Y.S.Lakhani submitted that it is the case of the prosecution that it was only original accused No.3, who was armed with knife and it was only he who had said to have wielded the knife and caused injury not only to the deceased but, also to other five persons. So far as role of applicants - original accused Nos.4 and 5 is concerned, the only role attributed to them is that they picked up the pieces of broken pipes and caused injury to the persons with those pipes. Shri Lakhani very empathetically submitted that no medical evidence has come up on record to establish the case of the prosecution that any person having suffered injuries which can be caused by pipe. Shri Lakhani also submitted that even the oral evidence of the injured witnesses also does not support the case of the prosecution so far as the role attributed to original accused Nos.4 and 5 read with nature of injuries suffered by injured persons is concerned.
4.2 Learned Senior Advocate, Shri Y.S.Lakhani also submitted that after the incident, on 27.5.2010 applicants - original accused Nos.4 and 5 were arrested and they are in jail since then along original accused No.3. The applicant No.2 herein - original accused No.5 has suffered paralysis attack twice and even his speech is slurred. Shri Lakhani also emphasized that incidentally, it is required to be pointed out to the Court which the court ought to have taken into consideration even at the trial stage that applicants - original accused Nos.4 and 5 are not residing with original accused No.3. Accused No.3 is the main accused. The applicant No.2 - original accused No.5 with his wife (mother of original Page 3 of 7 R/CR.MA/5502/2015 ORDER accused No.3) had come to visit their son (accused No.3) and while they were at the place of accused No.3, accused No.4 had also come to pay a social visit to his parents and it is at that time this unfortunate incident is alleged to have taken place, wherein applicants - original accused Nos.4 and 5 are also roped in and they are paying for the said role by remaining in jail for long five years which will be completing in June,2015.
4.3 Learned Senior Advocate, Shri Y.S.Lakhani submitted that assuming without admitting and even if all the evidence is perused against them, at best the applicants can be alleged to have committed an offence under Sections 323 / 324 of IPC. It is the case of prosecution that they have armed themselves with pieces of broken pipe.
4.4 Be that as it may. Learned Senior Advocate, Shri Y.S.Lakhani requested that once they are out of the clutches of Section 149, it is a settled position of law that their individual role is required to be taken into consideration and when individual role is taken into consideration, they cannot be kept in jail even for a day more and they are required to be set free on bail and to see that injustice is not perpetuated and therefore, during the pendency of this appeal, they are required to be enlarged on bail by suspending the sentence imposed against them.
5. Learned APP Mr.Patel submitted that there is evidence of 9 injured witnesses and one person has lost his life and if such unruly behaviour of the members of the civilized society is permitted, that will be the dooms day for the law and order Page 4 of 7 R/CR.MA/5502/2015 ORDER situation in the society. However, learned APP could not dislodge the submissions made by learned Senior Advocate Shri Lakhani showing any overt act on the part of applicants - original accused Nos.4 and 5, which can be said to have slightest contribution either to the death of the person, who has lost his life or for the injuries suffered by the other injured persons.
6. In view of the above and considering the facts and circumstances of the case, applicants' application for suspension of sentence deserves to be allowed and the same is hereby allowed. The conviction and sentence dated 23.4.2014 recorded by the learned Additional Sessions Judge, Court No.7, Ahmedabad in Sessions Case No.117 of 2011 is hereby ordered to be suspended qua the present applicants - original accused Nos.4 and 5 till the final hearing of appeal and the applicants are hereby ordered to be released on bail on their executing a bond of Rs.10,000/- each (Rupees Ten Thousand Only) with one solvent surety of the like amount to the satisfaction of the lower Court on condition of observing all other usual conditions along with following conditions that they shall;
(a) not take undue advantage of their liberty or abuse their liberty.
(b) not to try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner.
(c) maintain law and order.
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R/CR.MA/5502/2015 ORDER
(d) surrender their passport, if any, to the lower court, within a week and if they do not possess any pass- port, then he shall make declaration to that effect before the trial court;
(e) If during the pendency of the criminal appeal any change in their residential addresses, permanent or temporary, takes place, then the applicants shall intimate the same to the trial Court as well as the concerned Police Station.
7. Bail before the trial court having jurisdiction.
8. Rule is made absolute. Direct service is permitted.
9. On a request made by learned APP Mr.Patel, it is clarified that all these observations are prima facie observations only for the purpose of this bail application and the same should not be taken into consideration by the Court while hearing of appeal on merits.
10. At this juncture, learned APP invited attention of the Court to the fact that applicants - original accused Nos.4 and 5 are already on temporary bail.
10.1 It is also clarified that applicants will have to follow all the required procedure for being on regular bail.
(RAVI R.TRIPATHI, J.)
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R/CR.MA/5502/2015 ORDER
(R.D.KOTHARI, J.)
vipul
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