Rule.
Learned Additional Public Prosecutor Mr.L.R. Pujari waives service of notice of Rule on behalf of the respondent-State.
In the facts and circumstances of the case and with consent of both the learned advocates, present application is taken up for its final consideration today itself.
The applicant-original accused No.5, who is one of the accused, convicted for the offence under Sections 363, 366, 376, 506(2) read with Section 114 of the Indian Penal Code as per the judgment and order dated 19th April, 2012 of learned Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No.99 of 2011. The present application is filed under Section 389 of the Code of Criminal Procedure, 1973.
Learned advocate for the applicant Mr.P.M. Dave submitted that the accused No.1 was the person who actually committed the act of sexual assault on the victim and he only can be charged for Section 376, IPC. As far as other accused Nos.2 to 5 are concerned, of which present application is for accused No.5, their role attributed is only to the extent that when father and other family members of the victim went to search her daughter at the house of accused No.1, other accused Nos.2 to 5 did not cooperate and did not part with the information. It was submitted that even the victim in her evidence did not name any of the accused Nos.2 to 5 and it was only the accused No.1, who enticed her to flee. Learned advocate for the applicant relied on the order dated 29th January, 2013 in Criminal Miscellaneous Application No.403 of 2013 wherein this Court has enlarged accused Nos.2 to 4 on bail, by submitting that the present applicant-accused No.5 is similarly situated in terms of role alleged against him.
Learned Additional Public Prosecutor could not dispute the position that by the aforesaid order dated 29th January, 2013, accused Nos.2 to 4 were granted bail.
Having regard to the above aspects of the case noted, however, without expressing any final opinion as far as the merits is concerned, in the facts and circumstances and having considered the fact that similarly situated co-accused have been released on bail as per the afore-mentioned order and further taking into account the role of the present applicant emerging from the evidence discussed by the Trial Court in the impugned judgment, it is proper to enlarge the applicant herein-original accused No.5 on bail pending the hearing of the main appeal.
Accordingly, the applicant herein shall be enlarged on bail pending the appeal on condition of his executing a bond of Rs.10,000/- (Rupees Ten Thousand Only) before the Trial Court. Rule is made absolute accordingly.
Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 3 of 3