Anil @ Anko Himmatbhai Makvana vs State Of Gujarat
2021 Latest Caselaw 15451 Guj

      R/CR.A/596/2021                               IA ORDER DATED: 01/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           2 of 2021
             In R/CRIMINAL APPEAL NO. 596 of 2021
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ANIL @ ANKO HIMMATBHAI MAKVANA Versus STATE OF GUJARAT ========================================================== Appearance:

MR P P MAJMUDAR for the PETITIONER(s) No. MR DM DEVNANI, LD.ADDL.PUBLIC PROSECUTOR for the RESPONDENT(s) No. ==========================================================

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

Date : 01/10/2021

IA ORDER (PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. Present application has been filed under Section 389 of the Code of Criminal Procedure, 1973 by the applicant - appellant, seeking suspension of his sentence pending Criminal Appeal No.596 of 2021 arising out of the judgment and order dated 15.02.2020 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No.47/2019 (hereinafter referred to as "trial Court") whereby the applicant has been convicted for the offences punishable under Sections 302, 394, 365, 323 and 114 of the Indian Penal Code, 1860.

2. Learned advocate for the applicant would submit that allegation levelled against the present applicant is that he was sitting before the accused, who has been enlarged on bail pending bail by this Court vide order dated 23/09/201 in Criminal Misc. Application No.2 of 2021 in Criminal Appeal No.1104 of 2020.

R/CR.A/596/2021 IA ORDER DATED: 01/10/2021

3. We have gone through the deposition of the complainant (PW-17, Exh.42) who has lodged the FIR after a period of three days in which he has given the names of two accused (one of which is before this Court by way of present application). Though he gathered information from the deceased on the date of incident i.e. on 26.11.2018, he lodged the FIR only 29.11.2018. We have also examined the deposition of Investigating Officer and documentary evidences like report of Forensic Science Laboratory, panchnama of scene of offence, discovery panchnama etc. Though the present application is opposed by the learned APP, without scrutinizing the evidence in detail at this stage, we are inclined to entertain the present application on following grounds.

(1) That the complainant did not disclose the name of the applicant before the police authority for three days and does so only at the time of filing the FIR and before the Court that he was informed by the deceased about the incident;

(2) That, even the brother of the deceased though allegedly aware about the alleged involvement of applicant did not file any complaint;

(3) That, as the prosecution did not examine the Medical Officer who allegedly treated the injured on the date of incident who was alive till the next day;

(4) That, there is no test identification parade at the instance of any of the witnesses.

In view of the above prima facie findings, we are of the opinion that the application requires consideration. Accordingly, the present application is allowed.

R/CR.A/596/2021 IA ORDER DATED: 01/10/2021

4. In view of the above, it is directed that the execution of the sentence dated 15.02.2020 imposed by the learned Sessions Court, Bhavnagar in Sessions Case No.47 of 2019 shall remain suspended pending the Criminal Appeal qua the present applicant - appellant - ANIL @ ANKO HIMMATBHAI MAKVANA 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.

5. Rule is made absolute. A copy of the order be sent to the concerned Sessions Court as well as to the concerned Police Station. It is hereby made clear that the findings arrived at are tentative only qua the present applicant only.

(A.J.DESAI, J)

(NIRZAR S. DESAI,J)

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