Gujarat High Court
Mukesh @ Agul S/O Shankarbhai ... vs State Of Gujarat on 22 February, 2021
Bench: A.J.Desai, A.C. Rao
R/CR.A/2426/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1
of 2021
In R/CRIMINAL APPEAL NO. 2426 of 2019
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MUKESH @ AGUL S/O SHANKARBHAI RAWAT
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR ASHISH M DAGLI for the PETITIONER(s) No.
MS KRINA CALLA, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No.
=============================================
CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 22/02/2021
IA ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
[1.0] This is an application under section 389 of the Code of
Criminal Procedure, 1973 preferred by the applicant (original
accused No.2) for suspension of the substantive order of sentence
and bail pending the final hearing of the Criminal Appeal No.2426
of 2019 filed by the applicant against the judgment and order of
conviction and sentence passed by the learned Additional Sessions
Judge, Court No.14, City Civil and Sessions Court, Ahmedabad in
Sessions Case No.186 of 2018 dated 03.12.2018 convicting the
applicant and others for the offences punishable under sections
302, 323, 201, 120(B) read with section 114 of Indian Penal Code,
1860 and under section135 of Gujarat Police Act and sentencing
the applicant herein for life imprisonment.
[2.0] Briefly stated the case of the prosecution is that the accused
No.1 had suspicion that his wife Sejal has illicit relation with the
deceased Rajeshbhai and therefore, he in collusion with the other
R/CR.A/2426/2019 IA ORDER
accused including the applicant herein, hatched a conspiracy, as a
result of which, on 29.05.2017, the deceased Rajeshbhai alias
Rajubhai alias Logi Gangaram Vaghela was called at the house of
the original accused No.1 named Bhadresh alias Bhurji son of
Mafaji Thakore and all the accused together assaulted the deceased
Rajeshbhai. The accused No.1 injuries with knife, applicant herein
and accused No.3 caused injuries with scythe and accused No.4
caused injury with kick and fist blows to the deceased Rajeshbhai.
The deceased tried to run away from the house of the accused No.1
on the road. He fell down about 200 mtrs. from his house.
Thereafter, he was taken to the hospital, however, he was declared
dead. It is alleged that on account of the injuries caused by all the
accused, which are 21 in number, deceased Rajeshbhai succumbed.
[2.1] At the conclusion of the trial, the trial Court convicted all the
accused for the offences punishable under sections 302, 323, 201,
120(B) read with section 114 of Indian Penal Code, 1860 and
under section 135 of Gujarat Police Act and sentenced the applicant
herein and other three accused for life imprisonment, while passing
judgment and order in Sessions Case No.186 of 2018 dated
03.12.2018.
[2.2] The applicant herein has preferred Criminal Appeal No.2426
of 2019 challenging the judgment and order of conviction and
sentence. The appeal is admitted and pending for final
adjudication. The applicant has preferred the present application
for suspension of sentence and bail pending criminal appeal.
R/CR.A/2426/2019 IA ORDER
[3.0] Mr. Ashish Dagli, learned Advocate appearing on behalf of
the applicant - convict has made the following submissions :
[1] None of the eye witnesses to the incident have supported the
case of the prosecution and they have been declared hostile.
[2] There is no cogent and convincing evidence against the
applicants to connect them with the commission of the alleged
offence and the prosecution has not proved the case beyond
reasonable doubt.
[3] The trial court has convicted the applicants mainly relying on
the Panchnama which are admitted by the accused, though none of
the eye witnesses have supported the case of the prosecution.
[4] The applicant is convicted mainly on the basis of
circumstantial evidence and even the chain of circumstances is not
complete.
[5] The applicant in jail from the date of his arrest and
substantial period has elapsed.
[6] The applicant has a strong prima facie case and there are
more than fair chances of the Criminal Appeal preferred by the
applicant against the judgment and order of conviction and
sentence being allowed. However, the appeal is not likely to be
heard in near future.
[7] He has also relied upon the order dated 26.04.2019 passed
by the coordinate Bench of this Court in Criminal Misc. Application
No.1 of 2019 in Criminal Appeal No.315 of 2019, by which the co
accused who had allegedly played similar role have been enlarged
on bail pending the said criminal appeal.
[8] This is a fit case to exercise the discretion in favour of the
applicant.
R/CR.A/2426/2019 IA ORDER
Making the above submissions, it is prayed that the present
application may be allowed.
[4.0] Ms. Krina Calla, the learned APP appearing for the State has
vehemently opposed the present application. She submitted that
there is ample evidence on record to connect the applicant with the
commission of the crime.
[4.1] Learned APP took us through the relevant evidence against
the applicant.
[4.2] Learned APP further contended that there is sufficient
incriminating evidence against the applicant.
[4.3] Learned APP appearing for the State contended that the
weapon used by the accused in commission of the offence was
recovered at the instance of the accused.
[4.4] Learned APP appearing for the State further contended that
before short time of the incident, the deceased had called his wife
and told her that he is with the applicant and other accused and he
also asked his wife to cook dal for one of the accused. Thus, lastly
the deceased was with the applicant and other accused even as
informed by the deceased to his wife. Even otherwise, the chain of
circumstance is proved. She submitted that present is not a case
wherein discretion is required to be exercised in favour of the
applicant who is convicted for life and considering the gravity of
the offence, present application is required to be rejected.
R/CR.A/2426/2019 IA ORDER
[5.0] Heard Mr. Ashish Dagli, the learned Advocate for the
applicant and considered prima facie the evidence on record for
consideration of this application for suspension of sentence and
bail. We have gone through the Record & Proceeding of Sessions
Case No.186 of 2018. Considering the overall facts and prima facie
evidence on record and considering the fact that coaccused who
had allegedly played similar role to that of the applicant herein
have been enlarged by the coordinate Bench of this Court vide
order dated 26.04.2019 passed in Criminal Misc. Application No.1
of 2019 in Criminal Appeal No.315 of 2019, we are inclined to
exercise our discretion in favour of the applicant herein.
[6.0] In the result, the present application succeeds. The
application is allowed. The applicant herein original accused No.2
MUKESH @ AGUL S/O SHANKARBHAI RAWAT is ordered to be
released on bail on his furnishing a solvent surety of Rs.50,000/
(Rupees Fifty Thousand Only) and Personal Bond of the like
amount on the usual terms and on the following further
conditions :
[a] The applicant shall not take undue advantage of his
liberty or abuse his liberty.
[b] The applicant shall maintain law and order.
[c] The applicant shall surrender his passport, if any, to the
lower Court, within a week.
[7.0] In the meantime, the substantive sentence qua applicant
herein shall remain under suspension. Bail Bond before the Trial
Court.
R/CR.A/2426/2019 IA ORDER
[8.0] The observation made hereinabove shall have no bearing on
the case at the stage of final hearing of Criminal Appeal. Rule is
made absolute accordingly. Record & Proceeding of the Sessions
Case No.186 of 2018 be sent back to the concerned Sessions Court
forthwith so that paper book can be prepared.
Registry is directed to communicate the present order to the
concerned Jail Authority through email/fax forthwith.
(A.J.DESAI, J)
(A. C. RAO, J)
Ajay
