Learned APP waives service of notice of rule.
2. Heard learned counsel for the parties and perused the papers. The applicant has been convicted for the offences punishable under Section 306 and 498-A of the Indian Penal Code ( for short IPC ). The only substantial allegation against the applicant was that he was a frequent drunkard and frequently beating the victim. The learned counsel for the applicant while relying upon Hans Raj Vs. State of Haryana [ 2004 Cri. L.J. 1759 ] would contend that, even if such allegation is taken as face value, presumption under Section 113-A of the Evidence Act, in cases where the marital period is less than seven years, was not attracted.
3. In the instant case also, the marital period was about four years, and in light of the only allegation as above, the question as to whether presumption under Section 113-A of the Evidence Act could have been invoked requires reappreciation.
4. Learned APP, however, invited attention of this Court to various parts of the judgment to show that a serious crime was committed by the applicant and the evidence was corroborated by witnesses and the marriage life was only four years.
Having regard to the above position as well as the fact that the sentence is of short duration i.e. five years against which the applicant has already undergone more than two years and the fact that the applicant has a small baby also as also considering the fact that the appeal is not likely to be heard in near future, the applicant is required to be enlarged on bail by suspending the sentence.
6. In above view of the matter, the present application deserves to be allowed and the same is allowed. The conviction and sentence imposed by the learned 2nd Additional Sessions Judge, Gandhinagar in Sessions Case No.13 of 2012 on 14.08.2013 shall remain under suspension till final hearing and disposal of the appeal. The applicant-appellant is ordered to be released on bail on his furnishing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that the applicant :
(a) shall deposit the passport, if any, with the trial court.
(b) shall not leave the State of Gujarat without permission of this Court.
shall undertake that he will make himself available in this appeal as and when required by the court.
(d) shall not take undue advantage of his liberty or abuse his liberty.
(e) shall maintain law and order.
Rule is made absolute. Direct service is permitted.
(G.R.UDHWANI, J.) syed/ Page 3 of 3