Jaydip @ Lambo Haribhai Pipaliya vs State Of Gujarat
2021 Latest Caselaw 3795 Guj

        R/CR.A/1371/2020                                   IA ORDER




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

   CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
                SENTENCE) NO.1 of 2020
         In R/CRIMINAL APPEAL NO.1371 of 2020
=========================================

JAYDIP @ LAMBO HARIBHAI PIPALIYA Versus STATE OF GUJARAT ========================================= Appearance :

A R PATEL for the APPLICANT.

MS KRINA CALLA, Additional Public Prosecutor for the RESPONDENT. =========================================

CORAM: HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE A.S. SUPEHIA

Date : 04/03/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. This is an application under Section 389 of the Code of Criminal Procedure, 1973, at the instance of a convict (original accused No.1) seeking suspension of the substantive order of sentence of life imprisonment passed by learned 4th Additional Sessions Judge, Rajkot dated 16th October, 2018 in Sessions Case No.148 of 2016.

2. We take notice of the fact that the applicant herein and one co-accused were put on trial in the Court of learned 4 th Additional Sessions Judge at Rajkot for the offences punishable under Sections 302, 365 read with Section 114 of the Indian Penal Code (for short "the IPC") and Section 135 of the Gujarat Police Act. At the conclusion of the trial, the Trial Court held the applicant herein and the co-accused guilty of the offence of murder and sentenced them to undergo life imprisonment.

3. Mr. A. R. Patel, learned advocate appearing for the

R/CR.A/1371/2020 IA ORDER

applicant would submit that the Trial Court has erred in convicting the applicant. He would submit that the eye-witnesses have turned hostile and even the panch witnesses have not supported the case of the prosecution. He would further submit that even the co- accused i.e. Amit Pradipbhai Akbari has been enlarged on bail pending appeal by the coordinate Bench of this Court vide order dated 6.5.2019 passed in Criminal Misc. Application No.1 of 2019 in Criminal Appeal No.787 of 2019 and hence, the present application may be allowed and the sentence imposed upon the applicant may be suspended pending appeal.

4. On the other hand, Ms. Krina Calla, learned Additional Public Prosecutor appearing for the respondent - State has vehemently opposed this application and has supported the impugned judgment and order of conviction of the Trial Court. She, therefore, would submit that the present application be rejected.

5. We have heard learned advocates appearing for the respective parties and gone through the depositions of witnesses including eye-witnesses who have not supported the case of the prosecution as well as the deposition of the Investigating Officer. We have also gone through the order dated 6.5.2019 passed by the coordinate Bench of this Court in Criminal Misc. Application No.1 of 2019 in Criminal Appeal No.787 of 2019 by which co-accused i.e. Amit Pradipbhai Akbari has been enlarged on bail pending appeal. We have also gone through the allegations levelled against the present applicant and considering the role alleged to have been played by the present applicant as well as co-accused Amit Pradipbhai Akbari which is same, tentatively, we are in agreement with the observations made in paragraphs 4, 5, 5.1 and 5.2 of the order dated 6.5.2019 passed by the coordinate Bench of this Court in Criminal Misc. Application No.1 of 2019 in Criminal Appeal

R/CR.A/1371/2020 IA ORDER

No.787 of 2019. Hence, similar treatment is required to be given to the present applicant.

6. In view of the above, it is directed that the execution of the sentence imposed by learned 4th Additional Sessions Judge, Rajkot dated 16th October, 2018 in Sessions Case No.148 of 2016 shall remain suspended pending the appeal qua the present applicant - appellant Jaydip @ Lambo Haribhai Pipaliya and he shall be released 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 subject to the following conditions that the applicant :-

(a) shall not take undue advantage of or abuse his liberty.

(b) shall not try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner.

(c)              shall maintain law and order.
(d)              shall surrender his passport, if any, to the lower court
                 within a week.

7. Bail bond before the trial Court. Rule is made absolute to the aforesaid extent. Registry is directed to communicate this order to the concerned Jail Authority as well as concerned Sessions Court by e-mail message forthwith.

8. Registry is directed to send back the Records and Proceedings to the learned Trial Court and the learned Trial Court is directed to prepare Paper-book and send the same along with the Records and Proceedings to this Court.

(A. J. DESAI, J)

(A. S. SUPEHIA, J)

SAVARIYA