Rule.
Learned APP Mr. Jani waives service of Rule on behalf of the respondent - State.
The applicants have filed this application for bail, pending the hearing and final disposal of above Criminal Appeal No.138 of 2012. The said Appeal is preferred by the applicants, challenging the Judgment and order dated 7.2.2012 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 151 of 2007, whereby the learned Judge has convicted the applicant No.1 - original accused No.1 for the offences under Sections 307 and 114 of I.P. Code and under Section 135 of the BP Act and sentenced him to suffer SI for 5 years and to pay a fine of Rs.5000/- and i/d to undergo further SI for 3 months, and the learned Judge has convicted the applicant No.2 - original accused No.3 for the offences under Section 324 and 114 of I.P. Code and under Section 135 of BP Act and sentenced to suffer SI for 1 year and to pay a fine of Rs.2500/- and i/d of fine further to suffer SI for one month.
Heard learned Advocate Mr. Shaikh, appearing on behalf of the applicants and learned APP Mr. Jani, appearing on behalf of the respondent - State.
Learned Advocate for the applicants has read the oral version of the prosecution witnesses and read the medical certificate as well as the Judgment of the Court below and vehemently contended that looking to the allegation made by the complainant and the eye witnesses, forehead injury is not possible. He has contended that the oral version given by the complainant and his wife does not corroborate the medical evidence of the injuries on the person of the complainant. He has contended that the independent witnesses from the local area, examined by the prosecution, have not supported the case of the prosecution. He has contended that no grievous hurt is caused to the complainant and, therefore, the learned Judge has wrongly held the applicant No. 1 - accused No.1, guilty for the offence under Section 307 of I.P. Code. He has contended that the witnesses of recovery panchnama also turned hostile and they have not supported the case of the prosecution. He has also relied upon the decision in the case of ANGANA & ANR. v/s STATE OF RAJASTHAN, reported in 2009 (2) GLH 37 and contended that in the said case the Hon'ble Supreme Court has granted the bail and also suspended the sentence. He has contended that looking to the facts of the case, the applicants may be enlarged on bail, during the pendency of above Appeal.
Learned APP Mr. H.L. Jani has read the oral as well as documentary evidence and contended that medical expert Dr. Khan has properly explained the injuries received by the complainant. He has contended that the medical evidence also supports the case of the prosecution. He has contended that looking to the medical evidence the injury caused by the accused No.1 to the complainant is grievous in nature.
Heard learned Advocate for the applicant and learned APP for the respondent - State. I have also perused the papers produced before me and also the Judgment and order of the trial Court. It appears that the applicant and the complainant, both are neighbours. The applicant - accused No.1 is illegally doing the business of gas cylinder. Looking to the medical evidence produced before me, it clearly appears that the injured has received grievous injury and, therefore, I am of the opinion that the bail application qua the applicant No.1 is not required to be entertained. Hence, the bail application, filed by the applicant No.1 - original accused No.1 - Sabirali Saiyed Jafar Kadri is dismissed.
So far as bail application of applicant No.2 - original accused No.3 - Saiyed Moyunuddin Jafar Kadri is concerned, looking to the fact of the case, pending the hearing and final disposal of Criminal Appeal No.138 of 2012, he is ordered to be enlarged on bail on his executing the personal Bond of Rs.5000/- (Rupees five thousand only) and on usual terms and conditions. Bail before the trial Court.
Order accordingly. Rule is discharged in so far as applicant No.1 - original accused No.1 is concerned and Rule is made absolute in so far as applicant No.2 - original accused No.3 is concerned. Direct service is permitted.
(Z.K.SAIYED, J.) sas Top