Gujarat High Court
Pradipbhai Dhulabhai Pagi vs State Of Gujarat on 23 March, 2021
Bench: A.J.Desai, A.S. Supehia
R/CR.A/142/2020 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
2 of 2021
In R/CRIMINAL APPEAL NO. 142 of 2020
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PRADIPBHAI DHULABHAI PAGI
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE for the PETITIONER(s) No.
MS KRINA CALLA, APP for the RESPONDENT(s) No.
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CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 23/03/2021
IA ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. The present application has been filed under
Section 389 of the Code of Criminal Procedure,
1973, by the applicant - appellant - Pradipbhai
Dhulabhai Pagi, seeking suspension of sentence
imposed upon him pending Criminal Appeal No.142 of
2020 arising out of the judgement and order dated
07.09.2019 passed by the learned Additional
District and Sessions Judge, Mahisagar at Lunawada
in Sessions Case Nos.44 and 45 of 2017, by which
the applicant has been convicted for the offences
punishable under sections 395, 397, 307, 412 and
120B of the Indian Penal Code, 1860, section 135 of
the Gujarat Police Act, 1951 and section 25(1)(AA)
of the Arms Act, 1959 and has been sentenced for
life.
2. The appeal came to be admitted by the oral
order dated 03.02.2020.
R/CR.A/142/2020 IA ORDER
3. Learned advocate Mr.Hardik A.Dave for the
applicant has also produced the relevant documents
in form of depositions of witnesses showing the
details of use of mobiles by different accused,
including the applicant. Mr.Dave, learned advocate
appearing for the applicant would submit that the
applicant was not named in the F.I.R. and the co
accused came to be arrested by the investigating
agency after a period of three months from the date
of occurrence of the crime. He would submit that
though the applicant was not named either by the
complainant or any of the witnesses, including the
injured witnesses, the investigating agency has not
carried out any Test Identification (TI) Parade qua
the applicant. He would submit that one of the
witnesses viz. Arjanbhai Mangalbhai Pagi, for the
first time that too after a period of four years
from the date of incident, has identified the
applicant only in the Court; however, in the cross
examination he has admitted that he did not
disclose the name of the applicant before the
investigating agency when his statement was
recorded.
3.1 Learned advocate Mr.Dave for the applicant
would further submit that there is no discovery or
recovery of any article allegedly from the
applicant during investigation. He would submit
that no weapon is discovered at the instance of the
applicant. He would submit that the call detail
R/CR.A/142/2020 IA ORDER
records, which have been produced are not supported
by any evidence and the trial court ought not to
have accepted the call record as there is breach of
provision of section 65B of the Indian Evidence Act
since the investigating agency has neither examined
any witness nor has produced any certificate under
the said provision. Learned advocate would submit
that the applicant was on bail during the pendency
of the trial. Learned advocate would submit that
the applicant was originally arrested on 31.03.2014
and was released on bail by the Trial Court during
pendency of the trial and after pronouncement of
the judgment of conviction and order of sentence on
07.09.2019, the applicant is taken in custody and
since then he is in judicial custody and the appeal
is not likely to be finally heard in near future.
He would therefore submit that the applicant may be
released on bail.
4. On the other side, the learned Additional
Public Prosecutor has opposed this application and
would submit that the Trial Court has committed no
error in convicting the applicant since the
applicant has been identified by one of the
witnesses in the court itself. She would submit
that the legal aspect with regard to breach of
provision of section 65B of the Indian Evidence Act
can be considered at the time of hearing of the
appeal. Therefore, she would submit that the
present application may be rejected.
R/CR.A/142/2020 IA ORDER
5. We have heard learned Advocate Mr.Hardik
A.Dave for the applicant appellant and the
learned Additional Public Prosecutor for the State
and perused the record and proceedings of the case.
6. Without going into delay at this stage, what
we have found is that the applicant is not named in
the F.I.R., there is no TI Parade arranged by the
investigating agency qua the applicant, there is no
discovery and recovery of any article or any weapon
or any material with regard to the ownership of the
mobiles produced on record.
7. 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
allowed. Accordingly, the present application is
allowed.
8. In view of the above, it is directed that the
execution of the sentence imposed by the learned
Sessions Court in Sessions Case Nos.44 and 45 of
2017 shall remain suspended pending the appeal qua
the present applicant - appellant radipbhai
Dhulabhai Pagi and that he shall be released on
bail pending the appeal subject to the following
conditions :
R/CR.A/142/2020 IA ORDER
(i) The applicant shall furnish the bond of
Rs.25,000/ (Rupees Twenty Five Thousand only) and
solvent 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 mark his presence to
the nearest Police Station on every fifteen days
till further orders.
9. Rule is made absolute. A copy of the order be
sent to the concerned Sessions Court as well as to
the concerned Police Station.
10. Record and proceedings be kept with Registry.
Sd/
(A.J.DESAI, J)
Sd/
(A.S.SUPEHIA, J)
Bhavesh-[PPS]*
