MUKESH @ AGUL S/O SHANKARBHAI RAWAT Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Mukesh @ Agul S/O Shankarbhai Rawat
STATE OF GUJARAT
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A.J.DESAI, J. -
(1.) 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.) 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 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.
(3.) Mr. Ashish Dagli, learned Advocate appearing on behalf of the applicant - convict has made the following submissions :  None of the eye witnesses to the incident have supported the case of the prosecution and they have been declared hostile.  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.
 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.
 The applicant is convicted mainly on the basis of circumstantial evidence and even the chain of circumstances is not complete.
 The applicant in jail from the date of his arrest and substantial period has elapsed.
 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.
 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.
 This is a fit case to exercise the discretion in favour of the applicant.
Making the above submissions, it is prayed that the present application may be allowed. ;
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