(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Rule.
Mr.Pandya, learned APP waives service of rule on behalf of respondent-State.
Mr.Mansuri, learned counsel appearing for all the accused in the Conviction Appeal No.1305 of 2011 states that the remaining accused - convict No.A1 to A4 are not to press for suspension of sentence and regular bail keeping in view the facts and circumstances of the case, and he further declare before the Court that considering the facts and circumstances of the case, there are fair chances for A-5 and therefore, the present application has been preferred for suspension of sentence and regular bail for A-5 only who is one of the accused of the incident.
We have heard Mr.Mansuri learned counsel for the applicant and Mr.Pandya, learned APP for the State.
The present application is for suspension of sentence and regular bail preferred by A-5.
It, prima-facie, appears that the name of the applicant was initially not in the complaint, but, there was reference to one unidentified person and it is true that subsequently in the identification parade, the applicant was identified. As per the prosecution case, the presence of the applicant was established but there was no charge of Section 149 of Indian Penal Code (IPC) though learned Sessions Judge has convicted for the offence under Section 149 of IPC. In any case, charge of Section 34 was there and if the overt act or the role played was to be considered, there is no specific overt act attributed by any of the eye-witnesses by name for the applicant herein (A-5). Under the circumstances, we find that it would be a case of suspension of sentence for A-5. We may not record further reasons since any observations may prejudice the case of either side suffice it to observe that aforesaid are prima-facie observations. It will be open to either side to convince the Court for taking any independent view of the matter after appreciation of all the evidence.
In view of the aforesaid prima-facie observations, we find the sentence imposed upon A-5 applicant herein deserves to be suspended and he deserves to be released pending the final hearing of the appeal. Hence, the following order.
Sentence imposed upon the applicant original A-5 is suspended and he shall be released on regular bail on personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) and one solvent surety of the like amount on following conditions:
(i) He shall not misuse his liberty while on bail;
(ii) He shall not leave the limits of the country without prior permission of the Court;
(iii) He shall surrender his passport if any.
Application is allowed to the aforesaid extent. Rule made absolute. Direct service is permitted.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (ashish) Top