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CR.MA/15920/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15920 of 2010
In
CRIMINAL
APPEAL No. 27 of 2010
=========================================
CHEHRABHAI
JESUNGBHAI GOL PATEL
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR
PRAVIN GONDALIYA for Applicant(s) : 1,
MR. R.C.KODEKAR, APP for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 21/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
RULE.
Mr.
R.C.Kodekar, learned APP appears and waives service of notice of
Rule on behalf of the Respondent – State of Gujarat.
Having
regard to the facts of the case, the application is taken up for
hearing today.
The
applicant – convict prisoner, who, vide judgment and order
dated 30.12.2009 rendered in Sessions Case No.159 of 2007 by the
learned Additional Sessions Judge, Fast Track Court No.3, Palanpur,
has been convicted for the offence punishable under Sections 302,
201 and 120B of the Indian Penal Code and sentenced to imprisonment
for life, has filed this application praying for suspension of
sentence and to release him on regular bail during the pendency and
final hearing of the above numbered Criminal Appeal.
We
have considered the submissions advanced by Mr. Pravin Gondaliya,
learned Advocate for the Applicant and Mr.R.C.Kodekar, learned APP
for the Respondent – State of Gujarat. We have also perused
the impugned judgment and oder convicting the Applicant accused of
the offences punishable under Sections 302, 201 and 120B of IPC,
against which Criminal Appeal No.27 of 2010 has been Admitted vide
order 13.1.2010.
On
perusal of the record of the case, it is seen that the earlier
application being Criminal Misc. Application No. 186 of 2010 filed
by the applicant for suspension of sentence and to release him on
regular bail has been disposed of by a coordinate bench of this
Court vide order dated 13.1.2010, as the learned Advocate of the
Applicant in all fairness has not pressed the said application.
Therefore, this is a successive bail application only on the ground
that one year has elapsed and the Appeal has not been listed on
final hearing board.
According
to us, this is not a change in circumstance. That apart, on merits
of the case, on a perusal of the impugned judgment and order, it is
seen that the trial Court has convicted the applicant accused on the
basis of the discovery panchnama of the recovery of the motorcycle
of the accused as well as leg of cot (charpai)
at the instance of the accused. Therefore, at this stage, it is very
difficult to jump to the conclusion that the impugned judgment and
order convicting the applicant accused is erroneous or perverse and
any illegality has been committed by the trial Court in convicting
the applicant accused of the offence with which he was charged.
In view of
this, since this is a successive bail application and on merits also
the Applicant has failed to make out the case for suspension of
sentence and to release him on regular bail during the pendency and
final hearing of the above numbered Appeal, the application deserve
to be rejected.
For the
foregoing reasons, application fails and accordingly it is rejected.
Rule is discharged.
Needless
to say that no observation made hereinabove shall be construed as an
expression of opinion on merits of the Appeal. The Division Bench,
which hear the Appeal, shall decide the same strictly on merits of
the case on reappraisal of the evidence adduced by the prosecution.
(A.M.Kapadia,J)
(B.N.Mehta,J)
Jayanti*
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