Pravinbhai Jorsangbhai Devluk vs State Of Gujarat
2021 Latest Caselaw 5175 Guj

         R/CR.A/516/2021                                ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/CRIMINAL APPEAL NO. 516 of 2021
                              With
     CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 1 of 2021
               In R/CRIMINAL APPEAL NO. 516 of 2021
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                   PRAVINBHAI JORSANGBHAI DEVLUK
                                Versus
                         STATE OF GUJARAT
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Appearance:
MR.KISHAN PRAJAPATI(7074) for the Appellant(s) No. 1
MS JIRGA D JHAVERI APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                           Date : 19/04/2021
                            ORAL ORDER

ORDER under CRIMINAL APPEAL NO. 516 of 2021

ADMIT.

ORDER under CRIMINAL MISC.APPLICATION NO. 1 of 2021

1. Rule. Learned APP Ms. Jirga Jhaveri waives service of notice of rule on behalf of the respondent­State.

2. This application is filed under section 389 of the Criminal Procedure Code, 1973 for suspension of conviction and sentence and for bail pending criminal appeal, which is preferred against the judgment and order dated 25.03.2021 passed by the Ld. 6th Addl. Sessions Judge, Bhavnagar, whereby the petitioner is ordered to undergo 3 years rigorous imprisonment and fine of Rs. 10,000/­ and in default, further to undergo simple imprisonment for 6 months, for conviction under section 307 of Indian Penal Code.

R/CR.A/516/2021 ORDER

3. Mr. Kishan Prajapati, learned advocate for the applicant, submitted that the appellant­applicant came to be acquitted for the offence punishable under section 326 of IPC and section 135 of the Gujarat Police Act. He further submitted that at present, the appellant­applicant is an old aged person about 63 years and since long time he is bed­ridden due to paralytic attack and is suffering from serious back pain, there are fractures in his hands and legs. Which fact has been noted in the judgment by the learned trial Court as the applicant was brought before the Court for his further statement under section 313 of CrPC. Accused cross­examined 34 witnesses wherein the doctor has also been examined during the trial who is the friend of the victim. There are doubts regarding the weapon which is alleged to be used to cause the injury. Further, in the history before the medical officer the injured­complainant who is a doctor has not disclosed the name of the assailant that by itself creates doubt on the authenticity of the evidence of the injured doctor.

4. As per to the facts of the case the applicant had gone for operation of Haraniya under the guidance of Dr. Ghanshyambhai Lavjibhai at Medical Camp. He was not satisfied with the operation, therefore on 12.03.2013 in the morning around 09.45 hours, he inflicted knife blow on the stomach of the Doctor Ghanshyambhai Patel with an intention to kill the doctor. Thereafter, upon completion of investigation charge sheet has been filed against the appellant under section 307 and 326 of IPC read with section 135 of GP Act.

5. Ms. Jirga Jhaveri, learned Additional Public Prosecutor,

R/CR.A/516/2021 ORDER

has submitted that the applicant has intentionally injured the doctor, and as per the evidence an attempt has been made to murder the witness. There are corraborative evidence to that effect which is produced on record regarding the injury. She further stated that documents prima facie show the intentional injury has been caused and the trial Judge has very clearly come to the conclusion on the evidence. Therefore, this court may not exercise discretion in favour of the applicant and no concession be shown on humanitarian ground.

6. Heard learned advocates on both the sides and perused the material on record.

7. The law on the subject is well­settled. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously, depending on the facts and circumstances of each case. While considering the issue of suspension of sentence, each case has to be considered on the basis of the nature of offence, the manner in which the occurrence has taken place and whether in any manner bail granted earlier had been misused.

8. While considering an application under section 389 CrPC, the issue to be considered by the appellate Court is whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which, ultimately, the accused has fair chances of acquittal. This has to be done in the backdrop that the appellate Court cannot appreciate the evidence while considering an application under section 389

R/CR.A/516/2021 ORDER

CrPC but, can look into the reasoning assigned by the trial Court while recording the conviction.

9. In the present case, the learned trial Judge has granted bail under section 389(3) of CrPC. The conviction under section 307 of IPC followed by sentence to undergo 3 years rigorous imprisonment and fine of Rs.10,000/­ and in default of the same, directed to undergo rigorous imprisonment for 6 months on 25.03.2021. About 34 witnesses were examined, accused was identified by the witness in the court and the documentary and physical evidence has been produced to be considered as conclusive proof. Thus looking to the facts and circumstances of the case the doctor who had knowledge of the identity of the assailant failed to disclose in the history before the medical officer.

10. Thus prima facie looking to the facts and circumstances of the case and considering the evidence of the witnesses the appellant has good ground to agitate. Hence, taking all these documents into consideration and the foregoing reasons, the application is allowed. Looking to the present medical condition of the applicant the execution of sentence imposed upon the applicant vide judgment and order dated 25.03.2021 passed by the learned 6th Addl. Sessions Judge, Bhavnagar in Sessions Case No.123 of 2013, shall stand suspended and the appellant is ordered to be released on bail, pending hearing and final disposal of the captioned appeal and the applicant is ordered to be released on bail on furnishing personal bond of Rs.15000/­ (Rupees fifteen thousand only) with solvent surety of the like

R/CR.A/516/2021 ORDER

amount to the satisfaction of the trial Court and on the following conditions;

(a)       shall maintain law and order.
(b)       shall not indulge in any activity leading to breach of public
peace and tranquility.
(c)       shall not leave the district without prior permission of
D.S.P of Bhavnagar.

11. Rule is made absolute. Registry to send a writ of this order to the jail authority and the trial Court forthwith by E­mail / Fax. Direct service is permitted.

(GITA GOPI,J) Radhika