1. Heard learned advocate Mr.Zuben Bharda holding brief for Mr.Sunil C. Patel for the applicants, as well as learned Additional Public Prosecutor Mr.L.R. Pujari for the State.
2. Applicant Nos.1 to 3 herein, who are original accused Nos.1 to 3 respectively have filed the present application under Section 389 of the Code of Criminal Procedure, praying for suspension of sentence and for releasing them on bail. The applicants have been convicted for the offence under Section 307 read with Section 114 of the Indian Penal Code, as also under Section 135 of the Bombay Police Act, as per the judgment and order dated 27th April, 2012 of learned Additional Sessions Judge, Bhavnagar in Sessions Case No.130 of 2009. For conviction under offence 307 read with Section 114 of the Indian Penal Code the applicants have sentenced to undergo five years rigorous imprisonment and to pay fine of Rs.2,000/- with default stipulation. For the conviction for offence under the Bombay Police Act, rigorous imprisonment for one month is imposed with fine of Rs.500/- and to undergo further imprisonment if the fine is not paid.
2.1 At the outset, learned advocate for the applicants states that he does not press this application in respect of applicant No.2-original accused No.2-Ghusabhai Chhaganbhai Gohil at this stage. Accordingly, as far as applicant No.2 is concerned, this application is disposed of has having been not pressed at this stage and Rule is discharged qua the applicant No.2.
2.2 As per the case of the prosecution, accused persons were involved in an incident which according to the complaint filed, was fallout of an election disputes. One Dharamsibhai was injured in the incident wherein it was alleged that applicant Nos.1 to 3 assaulted the victim and they were armed with Axe, Sword and Dhariya respectively. The accused No.2 in respect of whom the present application is not pressed as above, gave blow with Sword on the head of the victim. The accused Nos.1 and 3 inflicted injuries on the right arm near the shoulder to the victim.
2.3 Learned advocate for the applicants submitted that injury certificate showed that there were only two injuries whereas allegations were about three persons having assaulted with three different weapons. In the second fold, it was submitted that in the history given to the doctor, victim did not disclose name of any of the accused persons. He narrated the incident by stating that there was a group of 15 to 20 persons, who assaulted him. It was also submitted that thus though the complaint mentioned reason for incident to be an election dispute, evidence of Investigating Officer (Exhibit 43) ruled out such reason. It was revealed in the investigation that victim was harassing the daughter of applicant No.2-original accused No.2. It was next submitted that therefore even motive of crime is referable to accused No.2 only. So far as role of other accused being applicant Nos.1 and 3 herein is concerned, it was submitted, stands separate in the said context also. Learned advocate for the applicant submitted that one Savjibhai, who was the only eye-witness (Exhibit 18) turned hostile. Prosecution Witness No.1-Ramilaben claimed to be eye-witness had not only mentioned occurrence of the incident and therefore, submitted learned advocate for the applicant, her account of role of the accused and the manner of giving blows, etc., cannot be treated to be worthy of credit.
2.4 Learned advocate further submitted that out of total sentence imposed, which is of five years, the applicant Nos.1 and 3 have undergone more than one year by now. He relied on the decision of the Apex Court in case of Bhagwan Rama Shinde Gosai and others Vs State of Gujarat [(1999)4 SCC 421], to submit that the sentence is fixed term sentence, question of suspending the sentence and releasing the convict on bail should be liberally considered.
3. On the other hand, learned Additional Public Prosecutor submitted that weapons used were deadly and the allegations were serious. He submitted that it was only due to accuseds commission of acts, injuries were caused. He opposed the prayer in the present application.
4. The above aspects emerging on record regarding the prosecution case vis-a-vis the evidence, which forth-can on record are taken into account. They are, however, considered only for the purpose of present application without expressing any final opinion on the merits part thereof. Having regard to the actual role of applicant Nos.1 and 3 emerging in the entire incident and on overall view of the incident and the attendant circumstances, further having regard to the period undergone in the context of facts and evidence as prima-facie seen, as well as in view that the appeal is unlikely to be finally heard within measurable distance of time, it is proper to enlarge the applicant Nos.1 and 3 pending the appeal.
4.1 In the facts and circumstances of this case and in the context of the aspects highlighted above, the following observations of the Supreme Court in Bhagwan Rama Shinde Gosai (supra) may be noted with relevance:
When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be exercise in futility of efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter suspending the sentence. So as to make the appeal right, meaningful and effective.
5. Accordingly, it is directed that the applicant Nos.1 and 3-original accused Nos.1 and 3 shall be released on bail pending the final disposal of the main Criminal Appeal on condition that:
a) each of them shall execute a separate personal bond of Rs.10,000/- (Rupees Ten Thousand Only) and a surety of the equivalent amount to be separately given before the trial Court;
b) they will not misuse the liberty while enjoying the bail;
c) they will not leave the territorial limits of the State of Gujarat without prior permission of this Court.
Rule is made absolute qua applicant Nos.1 and 3.
Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 6 of 6