Gujarat High Court
Keshabhai Bhemabhai Rabari vs State Of Gujarat on 27 June, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.MA/13283/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 13283
of 2016
In CRIMINAL APPEAL NO. 738 of 2016
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KESHABHAI BHEMABHAI RABARI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR J G VAGHELA, ADVOCATE for the Applicant(s) No. 1
MS MOXA THAKKER ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 27/06/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This application is preferred by the appellant/convict under Section 389 of the Code of Criminal Procedure, 1973 pursuant to judgement and order dated 9.3.2016 rendered in Sessions Case No.41 of 2010 by learned Additional Sessions Judge at Deodar whereby the appellant was sentence for life with fine of Rs.10,000/- in default thereof 03 months simple imprisonment and also for section 307 for 5 years with fine of Rs.5,000/- and default thereof 02 months of simple imprisonment. Both the sentences are to run concurrently.
2. The case of the prosecution is based on a complaint for the incident dated 29.6.2009 around 12 to 1 a.m. at night Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Jun 29 02:30:23 IST 2016 R/CR.MA/13283/2016 ORDER when the accused Keshabhai Bhemabhai Rabari and his wife Atiaben and minor son Sagthabhai Keshabhai were asleep on different places within the compound of the house, the deceased Kumpabhai Hemabhai came there and caught the hand of the Atiaben with the intention of committing rape, as a result Atiaben started screaming which woke up the accused No.1 Keshabhai Bhemabhai and his father accused No2. Bhemabhai, who came with an axe and attacked the deceased. In the scuffle which took place even Accused No.1 had inflicted knife injuries to Atiaben and she was taken to the hospital and after medical treatment and operation performed she survived while Kumpabhai Hemabhai succumbed to the injuries.
3. However, at the end of investigation the present convict and his father were tried and the trial Court had given benefit of doubt to accused NO.2 Bhemabhai, father but convicted the present appellant by believing the case of the prosecution and accordingly appeal preferred against the conviction before this Court being Criminal Appeal (Against Conviction) No. 738 of 2016 came to be admitted on 10.6.2016.
4. The applicant, a life convict, now in jail for about 7 years has preferred this application for suspending sentence and grant of bail pending final hearing of Criminal Appeal mainly on the ground that wife of the present appellant who was injured eye witness has not supported her initial statement made before the Doctor as well as the police and she was declared hostile. It is submitted that even if the case of the prosecution is believed to be true and homicidal death is established the manner in which, the appellant/applicant is implicated in the crime, it is no more a case of sentence under Section 304 Part-
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HC-NIC Page 2 of 5 Created On Wed Jun 29 02:30:23 IST 2016
R/CR.MA/13283/2016 ORDER
II of Indian Penal Code as he was not only enraged due to unholy attempt made by deceased when he saw the modesty of his wife being enraged and an attempt of rape was made. If any of the exceptions namely, Exception 1 to 4 in Section 300 are seen, the applicant/appellant would get benefit atleast in the matter of sentence though arguments are reserved for seeking acquittal at the stage of final hearing. Learned advocate for the applicant has taken to other aspects of the case namely not examining son aged 12 years of the applicant who was present at the scene of offence and believing testimonies of two other witnesses by learned trial Judge though do not fully support the case of the prosecution namely, complainant-Vihabhai Hemabhai Exh.21 and Sankarbhai Kalabhai Exh.24. According to learned advocate for the applicant witness Satiben Kumpabhai, wife of the deceased at Exh.25 comes out with a different version that her husband was called by both the accused namely, the applicant and his father and that later on her husband was killed. In the above circumstances, it is submitted that the prosecution is not sure about the manner in which the incident has taken place and other evidence can be considered at the final hearing of appeal. Considering the period of incarceration so far undergone by the applicant/appellant by imposing conditions he may be granted bail.
5. As above above, learned APP has vehemently opposed grant of bail and/or suspension of sentence on the ground that witness Atiaben, wife of the applicant/appellant is not only injured but at the same time disclosed cause of the incident and role in commission of crime by her husband before Dr.Jagdish Khodabhai, Medical Officer who deposed at Exh.12 Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Jun 29 02:30:23 IST 2016 R/CR.MA/13283/2016 ORDER and confirmed more than 15 injuries. According to her, witnesses were threatened not to disclose real cause of death initially and they have adhered to their initial statement even in their testimonies before the Court. Further blood stains on clothes of present applicant which contained blood marks of deceased Kumpabhai Hemabhai further fortified case of the prosecution and none examining son aged 12 years of applicant would not dig out substance of the case of prosecution. It is submitted that when conviction is recorded for a serious offence under Section 302 and sentence is imposed for life imprisonment, this Court would be in loath in interfering with by suspending sentence and granting bail as prayed for by the applicant and accordingly be rejected.
6. Having heard learned advocates for the parties and on perusal of the record including the testimonies and documentary evidence made available, at this stage we come across atleast three different versions about nature and manner of the incident and prima facie the case of the prosecution appears to be weak but addressing the case in detail on merit would ultimately lead to causing prejudice to the case of prosecution as the Criminal Appeal is admitted and is to be heard finally. At this stage, not only consideration about applicant/appellant being imprisoned pursuant to crime committed for about 7 years but other attending circumstances as stated earlier namely, testimonies of wife of deceased, wife of applicant accused, two other witnesses and acquittal of accused NO.2, father of the applicant though attributed with axe and inflicting injury upon deceased. Upon overall facts and circumstances, prima facie evidence oral as well documentary on record and period of imprisonment Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Jun 29 02:30:23 IST 2016 R/CR.MA/13283/2016 ORDER already undergone by the applicant for about seven years, without commenting much on merit, we are inclined to grant bail by suspending the sentence.
7. The present application is allowed. The applicant is enlarged on bail on his furnishing a solvent surety of Rs.10,000/- (Rupees Ten thousand) and personal bond of the like amount on usual terms and on the following further conditions:-
(1) The applicant shall not take undue advantage of his liberty or abuse his liberty.
2. The applicant shall not to try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner.
3. maintain law and order.
4. surrender his passport, 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.
(ANANT S.DAVE, J.) (B.N. KARIA, J.) SMITA Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Jun 29 02:30:23 IST 2016