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CR.MA/968/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 968 of 2011
In
CRIMINAL
APPEAL No. 1899 of 2005
=========================================================
RAISING
HEMABHAI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
THROUGH
JAIL for
Applicant(s) : 1,
MR. KODEKAR, APP, for Respondent(s) : 1,
None
for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 09/02/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Rule.
Mr. Kodekar, learned APP, waives service of Rule on behalf of the
respondent State of Gujarat.
2. Having
regard to the facts of the case, this application is taken up for
hearing today.
3. The
applicant convict-prisoner, who, vide judgement and order dated
30.6.2005 rendered in Sessions Case No. 19 of 2005 by learned
Additional Sessions Judge, Fast Track Court No. 6, Panchmanal at
Godhra, has been convicted for the offence under Sections 302, 452 of
the Indian Penal Code and sentenced to imprisonment for life, has
filed this application through jail praying for suspension of
sentence and to release him on bail during the pendency and final
hearing of the above numbered Criminal Appeal. Alternative, it is
also prayed for expediting the hearing of the appeal.
4. We
have considered the submissions advanced by Mr. Kodekar, learned APP
for the respondent State of Gujarat. We have also perused the
averments made in the application and the jail remarks sheet so also
the impugned judgement and order.
5. Upon
perusal of the judgement and order of conviction and sentence
recorded against the accused as well as the evidence adduced in
trial, we have noticed that the case against the accused is based on
the oral testimony of the eye witness and the eye witness in terms
deposed before the Court about the role played by the applicant in
committing the crime. Therefore, prima facie, the decision of the
trial Court convicting the applicant under Section 302 of the Indian
Penal Code cannot be regarded as erroneous at this stage.
6. The
Supreme Court in several recent decisions has cautioned the High
Courts that after conviction of an accused under section 302 of the
Indian Penal Code, the relief of regular bail should not be granted
by the High Courts. Reference can be made to the decisions rendered
in case of (1) JADEJA AJITSINH NATUBHA AND ORS. Vs. STATE OF GUJARAT,
21 GLR 571, (2) STATE OF HARYANA VS.HASMAT, (2004)6 SCC 175,(3)
S.JEEVANANTHAM VS. STATE THROUGH INSPECTOR OF POLICE, T.N. (2004) 5
SCC 230, (4) STATE Represented By Inspector Of Police, Vigilance &
Anti-Corruption, Tiruchirapalli, T.N. Vs. V. JAYAPAUL (2004) 5 SCC
223 and (5) KISHORI LAL
Vs. RUPA AND OTHERS (2004) 7 SCC 638.
7. On
the facts and in the circumstances of the case this
Court is of the opinion that no ground is made out by the applicant
to release him on regular bail during the pendency and
final disposal of the appeal filed by him.
8. So
far as the prayer for early hearing of the appeal is concerned, it
may be noted that upon perusal of the jail mark sheets we have
noticed that the applicant has undergone 5 years 8 months 11 days
sentence as against the imprisonment for life and when he was
released on furlough leave he has absconded for 194 days. Therefore,
police has arrested and sent him to jail. In view of this also, the
prayer for early hearing of the appeal cannot be granted.
9. For
foregoing reasons, the application fails and it is accordingly
rejected.
10. Rule
is discharged.
(A.M. KAPADIA, J)
(BANKIM N. MEHTA, J)
(pkn)
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