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CR.MA/14975/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14975 of 2010
In
CRIMINAL
APPEAL No. 2070 of 2010
=========================================
HARSHADBHAI
CHANDULAL RATHOD - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR
KB ANANDJIWALA for Applicant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC
PROSECUTOR for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/01/2011
ORAL
ORDER
1. Rule.
Learned APP Mr. Jani waives service of Rule on behalf of the
respondent – State. Having regard to the facts and
circumstances of the case, this application is taken up for hearing
today.
2. This
is an application preferred by the applicant under Section 389 of the
Code of Criminal Procedure seeking bail against the judgment and
order of conviction and sentence passed by the learned Sessions
Judge, Gandhiangar in Sessions Case No.44 of 2009 dated 22.10.2010 by
which the learned Judge has convicted the applicant for the offence
punishable under Section 306 read with Section 34 of the Indian Penal
Code to undergo R.I. for 7 years and to pay a fine of Rs.10,000/- and
in default of the same, to further undergo R.I. for six months.
3. Learned
advocate Mr. Anandjiwala appearing on behalf of the applicant
submitted that even from the evidence of the mobile company, it is
not established that the present applicant – accused is holding
alleged mobile. Even the suicide note, which was written by the
deceased is totally false and wrong and same cannot be considered. He
also relied upon the decision reported in 2010 (3) GLH 270 in
the case of Madan Mohan Singh Vs. State of Gujarat. The
deceased Harshadbhai was very sensitive person and he was also
disturbed person and because of FIR lodged by Manishaben against his
family members, the deceased was apprehending loss of reputation in
the society, the deceased committed suicide. Even the conviction
imposed by the learned Sessions Judge for the offence punishable
under Section 306 of the Indian Penal Code is illegal and so far as
offence for the aforesaid section is concerned, the prosecution has
to establish the ingredients of Section 107 of Indian Penal Code, but
the ingredients of Section 107 are not attracted to the present case.
Even the applicant has not provided any abetment or instigation to
the deceased to commit suicide. Learned advocate also submitted that
the applicant has undergone 2 years and 20 days as under trial
prisoner and after conviction, he is in jail. Therefore, the judgment
and order passed by the learned Sessions Judge, Gandhinagar in
Sessions Case No.44 of 2009 of conviction and sentence be suspended
and the applicant be released on bail.
4. On
the other hand, learned APP Mr. Jani, while opposing the application,
submitted that the panchnama at Exhibit 38 and 40, which is regarding
recovery of C.D., it is established that the applicant is very well
involved in the offence and therefore, learned Sessions Judge rightly
appreciating the evidence, has convicted the applicant and imposed
sentence upon the applicant. Even from the letter of call details
produced at Exhibit 81 and from the mobile, it is also established
that the accused sent SMS and phone call made by him to the wife of
the deceased. It is very well established before the learned Sessions
Judge that the accused and Manishaben were having illicit
relationship and therefore, the deceased committed suicide. Present
applicant is abetor and/or instigator in the commission of the said
alleged offence. Therefore, the discretion is not required to be
exercised in favour of the applicant.
5. I
have heard both the learned advocates and also perused the papers
along with application. From the evidence produced before the
learned Sessions, it is already proved beyond reasonable doubt that
due to illicit relationship with the wife of the deceased by the
applicant, the deceased committed suicide. The deceased husband was
not in a position to tolerate such type of illicit relationship of
his wife with some one. I have perused the contents of the suicide
note at Exhibit 28. This Court is not entering into the merits of the
case at the bail stage, but from the contents of suicide note, it is
the case of prosecution not to consider the present application as
fit case to release the applicant on bail. Even from the ingredients
of Section 107 and 108 of the Indian Penal Code, it is already
established that prima facie case is made out against the applicant
and therefore, I am of the view that the applicant is not required to
be released on bail during the pendency of Appeal. Hence, the
applicant is dismissed. Rule is discharged.
(Z.K.SAIYED,J.)
ynvyas
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