Haresh Makanbhai Chothani vs State Of Gujarat
2021 Latest Caselaw 4239 Guj

        R/CR.A/950/2019                                             IA ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                            3 of 2020
              In R/CRIMINAL APPEAL NO. 950 of 2019
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HARESH MAKANBHAI CHOTHANI Versus STATE OF GUJARAT ================================================================ Appearance:

MR ND NANAVATY, SENIOR COUNSEL with SHIVANGI D VYAS for the PETITIONER(s) No. MR SM VATSA WITH MR P B KHANDHERIA for the RESPONDENT(s) MS KRINA CALLA, APP for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 16/03/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE A.J.DESAI) (1) By way of the present application under section 389 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to release him on bail during pendency of the accompanying appeal by suspending the sentence imposed by 4th Additional Sessions Judge, Gondal vide judgment and order dated 28.03.2019 in Sessions Case No.88 of 2003.

(2) We have heard learned Senior Counsel Mr.N.D. Nanavaty for Ms.Shivangi Vyas, learned advocate for the applicant, Mr.Krina Calla, learned Additional Public Prosecutor for the respondent­ State of Gujarat and learned advocate Mr.S.M.Vatsa for Mr.P.B.Khandheria for the original complainant. We have also gone through record and proceedings received by the Registry.

         R/CR.A/950/2019                                               IA ORDER




(3) An      F.I.R.          being     C.R.No.I­87               of       2003         was

registered with Gondal City Police Station, Dist. Rajkot on 13.05.2003 by one Rajeshreeba w/o. Jitendrasinh Sardarsinh Jadeja alleging that She along with her relative namely Vikramsinh, were travelling on 13.05.2003 at around 7 O'clock in the evening and while returning after visiting a relative at Gondal, at around 10:30 p.m., she found that a four wheeler and four to five motorcyclists were following them having swords in their hands. At the place of incident, when Vikramsinh stopped his car, she was attacked by one of the persons with a sword, pursuant to which she sustained injury on her left ear. It was further alleged in the F.I.R. that Vikramsinh was attacked by all these persons, she was thrown out of the car and she became unconscious and when she regained her consciousness, somebody helped her and ultimately she reached at her relatives' place and subsequently she was shifted to the hospital where the F.I.R. was lodged.

(4) A further statement of the complainant was recorded on 15.05.2003, in which she has described the entire evidence in detail. In all 15 accused were arraigned in the crime and charge­sheet was filed against them. A charge came to be framed against them for the offences punishable under Sections 302, 120B, 109, 324, 365, 143, 147, 148 and 149 of the Indian Penal Code, 1860 as well as Section 135 of the Gujarat

R/CR.A/950/2019 IA ORDER

Police Act. The charges were denied by the accused and, therefore, the case proceeded. During pendency of the trial, the original accused Nos.1 and 2 passed away and, therefore, the case abetted qua them. Accused No.5 namely Haresh Makanbhai Chothani (i.e. the present applicant) and another accused No.8 namely Ramji @ Ramlo Pragjibhai Markana came to be convicted for the offences punishable under Sections 302, 365, 147, 148 read with section 120B of the Indian Penal Code, 1860 and section 135 of the Gujarat Police Act, whereas the rest of the accused were acquitted.

(5) Learned Senior Counsel Mr.N.D.Nanavaty for the applicant would submit that the case is based solely on the basis of the say of the so­called eye witness namely Rajeshreeba, who has not named any of the accused, including the present applicant in the F.I.R. He has also taken us through the deposition of the said witness and would submit that she has not seen the actual occurrence of the crime and she is not clear that who has given blow to the deceased with the sword. He would further submit that even there is no discovery or recovery at the instance of the applicant. He would also submit that though the applicant was arrested on 07.06.2003, the police arranged Test Identification (TI) Parade after a period of 13 days i.e. on 21.06.2003, which creates doubt about the validity of such TI

R/CR.A/950/2019 IA ORDER

parade since during this period, he was sent to the police custody for interrogation and there were all chances to identify the applicant. He would further submit that conspiracy as alleged by the prosecution is not proved and, therefore, individual role, if any, can be seen. Though the learned Senior Counsel has argued several points, we have not dealt with the same at this stage. He would further submit that the applicant was released on bail during the pendency of the trial. He, therefore, would submit that the present application may be allowed.

(6) On the other hand, the learned Additional Public Prosecutor has opposed the application and would submit that the Trial Court has committed no error in not disbelieving the sole eye witness since she had sustained injuries supported by medical evidence. She would further submit that the applicant has been identified by the eye­ witness and has categorically stated before the Trial Court that the applicant was one of the assailants in the crime. She would submit that two swords have been discovered though at the instance of another accused viz. Ramji, however, the prosecution was able to establish the case that the swords have been used since the blood stains of the deceased have been found on the swords. She therefore, would submit that the application be rejected.

        R/CR.A/950/2019                                            IA ORDER




(7) Learned              advocate       Mr.Vatsa           appearing              for
Mr.P.B.Khandheria             for      the        original       complainant

has adopted the arguments advanced by the learned Additional Public Prosecutor and would submit that the eye­witness has even identified the applicant in the Court Room at the time of her deposition and has alleged that the applicant was one of the assailants in the crime. He therefore would submit that the application be rejected.

(8) We have heard the learned advocates for the respective parties. We have also gone through the deposition of sole eye­witness i.e. Rajeshreeba, F.I.R., which is lodged at her instance and her further statement. We have also gone through her cross­examination. However, at this stage we would not like to discuss omission or improvement in her versions. We have also considered the fact that no blood stains have been found on the cloths of the applicant, nor any weapon has been discovered at his instance. It is also pertinent to note that prima facie it appears that she has not stated that which accused has given blows to the deceased and it is also to be noted that rest of the accused have been acquitted by the Trial Court not believing the charge of conspiracy. It is also to be kept in mind that the applicant was on bail during pendency of the trial since 2003 till the date of conviction i.e. on 28.03.2019.

R/CR.A/950/2019 IA ORDER

(9) Having regard to the facts and circumstances of the case and to the submissions made by the learned Advocates for the parties, we are of the opinion that the present application deserves to be granted. Accordingly, the present application is allowed.

(10) In view of the above, it is directed that the execution of the sentence imposed by 4th Additional Sessions Judge, Gondal in Sessions Case No.88 of 2003 shall remain suspended pending the appeal qua the present applicant - appellant Haresh Makanbhai Chothani and that he shall be released on bail pending the appeal subject to the following conditions :­

(i) The applicant shall furnish the bond of Rs.10,000/­ (Rupees Ten Thousand only) and surety of the like amount and also furnish his full and correct present and permanent address, if any, along with the contact number.

(ii) The applicant shall deposit his passport, if any, before the concerned Sessions Court.

(iii) The applicant shall report to the concerned Police Station on any day of the first week once in a month.

R/CR.A/950/2019 IA ORDER

(11) Rule is made absolute. A copy of the order be sent to the concerned Sessions Court as well as to the concerned Police Station.

(12) Registry is hereby directed to send back the record and proceedings to the concerned Trial Court. The Trial Court is directed to prepare the paper book and send the same along with record and proceedings to this court forthwith.

Sd/­ (A.J.DESAI, J)

Sd/­ (A.S.SUPEHIA, J) NVMEWADA