{"id":132284,"date":"2011-06-06T00:00:00","date_gmt":"2011-06-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajeshkumar-vs-state-on-6-june-2011"},"modified":"2016-12-27T03:52:09","modified_gmt":"2016-12-26T22:22:09","slug":"rajeshkumar-vs-state-on-6-june-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajeshkumar-vs-state-on-6-june-2011","title":{"rendered":"Rajeshkumar vs State on 6 June, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Rajeshkumar vs State on 6 June, 2011<\/div>\n
Author: J.B.Pardiwala,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\n\n\tR\/CR.MA\/7267\/2011\n\t                                                                    \n\t                           JUDGEMENT\n<\/pre>\n
IN
\n\t\t\tTHE HIGH COURT OF GUJARAT AT AHMEDABAD<\/p>\n
CRIMINAL
\nMISC.APPLICATION  No 7267 of 2011<\/p>\n
In<\/p>\n
CRIMINAL
\n\t\t\tAPPEAL no  640 of 2011<\/p>\n
FOR
\nAPPROVAL AND SIGNATURE:\n<\/p>\n
HONOURABLE
\nMR.JUSTICE J.B.PARDIWALA<\/p>\n
================================================================<\/p>\n
1    <\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2    <\/span><\/p>\n
To
\n\t\t\tbe referred to the Reporter or not ?\n<\/p>\n
3    <\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4    <\/span><\/p>\n
Whether
\n\t\t\tthis case involves a substantial question of law as to the
\n\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\tmade thereunder ?\n<\/p>\n
5    <\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
================================================================<\/p>\n
RAJESHKUMAR
\n\t\t\tKESHAVLAL PATEL….Applicant(s)<\/p>\n
 Versus<\/p>\n
STATE
\n\t\t\tOF GUJARAT ….Respondent(s)<\/p>\n
================================================================<\/p>\n
Appearance:\n<\/p>\n
MR
\nBHARAT T RAO for the Applicant(s) No. 1<\/span><\/p>\n
MR
\nJK SHAH, APP for the Respondent(s) No. 1<\/span><\/p>\n
================================================================<\/p>\n
CORAM:\n<\/p>\n
HONOURABLE
\n\t\t\t\tMR.JUSTICE J.B.PARDIWALA<\/p>\n
Date
\n: 06\/06\/2011<\/p>\n
ORAL
\nJUDGEMENT<\/p>\n
\tRULE
\nreturnable forthwith. Mr.J.K.Shah, learned APP for the State waives
\nservice of notice of rule for and on behalf of the respondent
\nState.\n<\/p>\n
\tThis
\nis an Application under Section 389 of the Code of Criminal Procedure
\npreferred by the accused-applicant, praying for suspension of the
\nsubstantive order of sentence imposed by the Additional District and
\nSessions Judge, Sabarkantha at Himmatnagar (camp at Idar), dated 21st
\nMay 2011 passed in Sessions Case No.159\/2007, whereby the Additional
\nDistrict and Sessions Judge convicted the accused-applicant for the
\noffences punishable under Sections 397, 395, 342, 506(2) read with
\nSection 120B of the Indian Penal Code.\n<\/p>\n
\tThe
\ntrial Court, while convicting  the accused-applicant for the offences
\npunishable –\n<\/p>\n
(a)
\nunder Section 395 IPC, has ordered the accused-applicant to undergo
\nrigorous imprisonment for a term of 7 years with fine of Rs.5,000=00
\nand in default of payment of fine, further simple imprisonment of one
\nyear.\n<\/p>\n
(b)
\nunder Section 397 IPC, has ordered the accused   applicant to
\nundergo rigorous imprisonment for a term of 7 years.\n<\/p>\n
(c)
\nunder Section 342 IPC, has ordered the accused   applicant to
\nundergo rigorous imprisonment for a term of one year with fine of
\nRs.1,000=00 and in default of payment of fine, further simple
\nimprisonment of one month.\n<\/p>\n
(d)
\nunder Section 120B IPC, has ordered the accused   applicant to
\nundergo rigorous imprisonment for a term of 7 years with fine of
\nRs.5,000=00 and in default of payment of fine, further simple
\nimprisonment of one years.\n<\/p>\n
(e)
\nunder Section 506(2) IPC, has ordered the accused   applicant to
\nundergo rigorous imprisonment for a term of one year with fine of
\nRs.1,000=00 and in default of payment of fine, further simple
\nimprisonment of one month.\n<\/p>\n
\tAll
\nthe sentences have been ordered to run concurrently.\n<\/p>\n
\tThe
\naccused-applicant was acquitted for the offences punishable under
\nSections 323, 504 IPC and Sections 25(1)(b) and 27 of the Arms Act.\n<\/p>\n
\tLearned
\ncounsel for the accused-applicant would submit that the
\naccused-applicant has challenged the judgment and order of conviction
\nby filing a substantive appeal raising manifold grounds of challenge.
\nHe would further submit that the sentence imposed for all offences is
\nfor a fixed period and the maximum sentence which the
\naccused-applicant has to undergo is rigorous imprisonment for a term
\nof 7 years. He would further submit that pending the trial the
\naccused-applicant was on bail and during the period of bail, the
\naccused-applicant has not abused the process. He would further submit
\nthat the appeal would take a considerable long time before it is
\ntaken up for hearing and if the substantive period of sentence is not
\nsuspended and the accused-applicant is not released on bail, then the
\nvaluable right of appeal would get defeated. He would further submit
\nthat it takes a considerable long time before the appeals are taken
\nup for final hearing in this High Court and by the time the appeal
\nwould be taken up for final hearing, practically 80 to 90 percent of
\nthe sentence period would be over. He would further submit that,
\ntherefore, in the interest of justice and with a view to protect the
\nvaluable right of appeal as provided by the Code, the
\naccused-applicant should be released on bail pending the final
\ndisposal of the appeal, subject to terms and conditions.\n<\/p>\n
\tI
\nhave given my anxious thoughts and considerations to the submissions
\ncanvassed by learned counsel for the accused-applicant. It is true
\nthat the sentence which has been imposed by the trial Court is for a
\nfixed period and the maximum sentence is 7 years. It is also true
\nthat pending the trial, the accused-applicant was on bail and has not
\nmisused the liberty granted to him. It is also true that the appeal
\nwould take a considerable long time before it is taken up for final
\nhearing. However, all these aspects cannot be the sole consideration
\nfor suspending the substantive order of sentence once the trial Court
\nhas held the accused-applicant guilty of the offences and has imposed
\na maximum sentence of 7 years’ rigorous imprisonment.\n<\/p>\n
\tWhen
\nan appeal is preferred against conviction in the High Court, the
\nCourt has ample power and discretion to suspend the sentence, but
\nthat discretion has to be exercised judiciously depending on the
\nfacts and circumstances of each case. While considering the
\nsuspension of sentence, each case is to be considered on the basis of
\nnature of the offence, manner in which occurrence had taken place,
\nwhether in any manner bail granted earlier had been misused. In fact,
\nthere is no strait jacket formula which can be applied in exercising
\nthe discretion. The facts and circumstances of each case will govern
\nthe exercise of judicial discretion while considering the application
\nfiled by the convict under Section 389 of Criminal Procedure Code.\n<\/p>\n
\tReference
\ncan be made to the decision of the Supreme Court in the case of
\nKashmira Singh v. State of Punjab, reported in (1977)4
\nSCC 291, where the Supreme Court has observed that :-\n<\/p>\n
“Now,
\nthe practice in this Court as also in many of the High Court has been
\nnot to release on bail a person who has been sentenced to life
\nimprisonment for an offence under Section 302 of the Indian Penal
\nCode. The question is whether this practice should be departed from
\nand if so, in what circumstances. It is obvious that no practice
\nhowsoever sanctified by usage and hallowed by time can be allowed to
\nprevail if it operates to cause injustice. Every practice of the
\nCourt must find its ultimate justification in the interest of
\njustice. The practice not to release on bail a person who has been
\nsentenced to life imprisonment was evolved in the High Courts and in
\nthis Court on the basis that once a person has been found guilty and
\nsentenced to life imprisonment, he should not be let loose, so long
\nas his conviction and sentence are not set aside, but the underlying
\npostulate of this practice was that the appeal of such person would
\nbe disposed of within a measurable distance of time, so that if he is
\nultimately found to be innocent, he would not have to remain in jail
\nfor an unduly long period. The rationale of this practice can have no
\napplication where the Court is not in a position to dispose of the
\nappeal for five or six years. It would indeed be a travesty of
\njustice to keep a person in jail for a period of five or six years
\nfor an offence which is ultimately found not to have been committed
\nby him. Can the Court ever compensate him for his incarceration which
\nis found to be unjustified? Would it be just at all for the Court to
\ntell a person : ‘We have admitted your appeal because we think you
\nhave a prima facie case, but unfortunately we have no time to hear
\nyour appeal for quite a few years and, therefore, until we hear your
\nappeal, you must remain in jail, even though you may be innocent?’
\nWhat confidence would such administration of justice inspire in the
\nmind of the public? It may quite conceivably happen, and it has in
\nfact happened in a few cases in this Court, that a person may serve
\nout his full term of imprisonment before his appeal is taken up for
\nhearing. Would a Judge not to be overwhelmed with a feeling of
\ncontrition while acquitting such a person after hearing the appeal?
\nWould it not be an affront to his sense of justice? Of what avail
\nwould the acquittal be to such a person who has already served out
\nhis term of imprisonment or at any rate a major part of it? It is,
\ntherefore, absolutely essential that the practice which this Court
\nhas been following in the past must be reconsidered and so long as
\nthis Court is not in a position to hear the appeal of an accused
\nwithin a reasonable period of time, the Court should ordinarily
\nunless there are cogent grounds for acting otherwise, release the
\naccused on bail in cases where special leave has been granted to the
\naccused to appeal against his conviction and sentence.”\n<\/p>\n
\tThe
\nCourt going by the said consideration held that :-\n<\/p>\n
“so
\nlong as the Supreme Court is not in a position to hear the appeal of
\nan accused within a reasonable period of time, the Court should
\nordinarily, unless there are cogent grounds for acting otherwise,
\nrelease the accused on bail where special leave has been granted to
\nthe accused to appeal against his conviction and sentence. The other
\nconsideration, however, is equally important and relevant. When a
\nperson is convicted by an appellate Court, he cannot be said to be an
\ninnocent person until the final decision is recorded by the superior
\nCourt in his favour.”\n<\/p>\n
\tIn
\nthe case of Babu Singh v. State of U.P.,<\/a> reported in 1978(1)
\nSCC 579, it was observed that :-\n<\/p>\n
 the
\nsignificance and sweep of Art. 21 make the deprivation of liberty a
\nmatter of grave concern and permissible only when the law authorising
\nit is reasonable, even-handed and geared to the goals of community
\ngood and State necessity spelt out in Art. 19. Indeed, the
\nconsiderations I have set out as criteria are germane to the
\nconstitutional proposition I have deduced. Reasonableness postulates
\nintelligent care and predicates that deprivation of freedom by
\nrefusal of bail is not for punitive purpose but for the bifocal
\ninterests of justice – to the individual involved and society
\naffected.\n<\/p>\n
\tIn
\nthe case of Emperor v. H. L. Hutchinson, reported in
\nAIR 1931 All 356, it was observed that :-\n<\/p>\n
“As
\nto the object of keeping an accused person in detention during the
\ntrial, it has been stated that the object is not punishment, that to
\nkeep an accused person under arrest with the object of punishing him
\non the assumption that he is guilty even if eventually he is
\nacquitted is improper. This is most manifest. The only legitimate
\npurposes to be served by keeping person under trial in detention are
\nto prevent repetition of the offence with which he is charged where
\nthere is apparently danger of such repetition and to secure his
\nattendance at the trial. The first of those purposes clearly to some
\nextent involves an assumption of the accused’s guilt, but the very
\ntrial itself is based on a prima facie assumption of the accused’s
\nguilt and it is impossible to hold that in some circumstances it is
\nnot a proper ground to be considered. The main purpose however is
\nmanifestly to secure the attendance of the accused.”\n<\/p>\n
\tIn
\nthe case of Bhagwan Rama Shinde Gosai v. State of Gujarat,
\nreported in (1999)4 SCC 421, the Supreme Court has stated that
\nwhen a convicted person is sentenced to a fixed period of sentence
\nand when he files an appeal under any statutory right, suspension of
\nsentence can be considered by the appellate Court liberally unless
\nthere are exceptional circumstances. The Court has observed :\n<\/p>\n
“When
\na convicted person is sentenced to a fixed period of sentence and
\nwhen he files an appeal under any statutory right, suspension of
\nsentence can be considered by the appellate Court liberally unless
\nthere are exceptional circumstances. Of course if there is any
\nstatutory restriction against suspension of sentence it is a
\ndifferent matter. Similarly, when the sentence is life imprisonment
\nthe consideration for suspension of sentence could be of a different
\napproach. But if for any reason the sentence of a limited duration
\ncannot be suspended every endeavour should be made to dispose of the
\nappeal on merits more so when a motion for expeditious hearing of the
\nappeal is made in such cases. Otherwise the very valuable right of
\nappeal would be an exercise in futility by efflux of time. When the
\nappellate Court finds that due to practical reasons such appeals
\ncannot be disposed of expeditiously the appellate Court must bestow
\nspecial concern in the matter of suspending the sentence. So as to
\nmake the appeal right, meaningful and effective. Of course appellate
\nCourts can impose similar conditions when bail is granted.”\n<\/p>\n
\tThe
\nSupreme Court in the case of Suresh Kumar and others v. State (NCT
\nof Delhi), reported in (2001)10 SCC 338, where the
\nappellants had been convicted under Section 307 read with Section 34
\nof the Indian Penal Code and each was sentenced to imprisonment for a
\nperiod of three years and to pay fine of Rs.2000\/-, when they moved
\nan application under Section 389 of Code of Criminal Procedure for
\nsuspension of the sentence of imprisonment, the High Court had
\nrejected the application, the Supreme Court, following the
\nobservations made in the case of Bhagwan Rama Shinde Gosai, while
\nallowing the appeal filed by the convict, had kept in abeyance the
\norder of conviction passed by the trial Court till the disposal of
\nthe appeal filed by the convict and also had directed the release of
\nthe convict on bail.\n<\/p>\n
\tIn
\nthe case of Kishori Lal v. Rupa and others<\/a>, reported in (2004)
\n7 SCC 638, the Supreme Court has indicated the factors that
\nrequire to be considered by the Courts while granting benefit under
\nSection 389 in cases involving serious offences like murder etc., it
\nis useful to refer to the observations made therein. They are :-\n<\/p>\n
“Section
\n389 of the Code deals with suspension of execution of sentence
\npending the appeal and release of the appellant on bail. There is a
\ndistinction between bail and suspension of sentence. One of the
\nessential ingredients of Section 389 is the requirement for the
\nappellate Court to record reasons in writing for ordering suspension
\nof execution of the sentence or order appealed against. If he is in
\nconfinement, the said Court can direct that he be released on bail or
\non his own bond. The requirement of recording reasons in writing
\nclearly indicates that there has to be careful consideration of the
\nrelevant aspects and the order directing suspension of sentence and
\ngrant of bail should not be passed as a matter of routine.\n<\/p>\n
The
\nappellate Court is duty-bound to objectively assess the matter and to
\nrecord reasons for the conclusion that the case warrants suspension
\nof execution of sentence and grant of bail. In the instant case, the
\nonly factor which seems to have weighed with the High Court for
\ndirecting suspension of sentence and grant of bail is the absence of
\nallegation of misuse of liberty during the earlier period when the
\naccused-respondents were on bail.\n<\/p>\n
The
\nmere fact that during the trial, they were granted bail and there was
\nno allegation of misuse of liberty, is really not of much
\nsignificance. The effect of bail granted during trial loses
\nsignificance when on completion of trial, the accused persons have
\nbeen found guilty. The mere fact that during the period when the
\naccused persons were on bail during trial there was no misuse of
\nliberties, does not per se warrant suspension of execution of
\nsentence and grant of bail. What really was necessary to be
\nconsidered by the High Court is whether reasons existed to suspend
\nthe execution of sentence and thereafter grant bail. The High Court
\ndoes not seem to have kept the correct principle in view.”\n<\/p>\n
\tTaking
\ninto consideration the position of law as can be gathered from
\nvarious judgments of the Supreme Court, it is very clear that
\ndiscretion at the time of considering the plea of the accused for
\nsuspension of sentence pending final hearing of appeal has to be
\nexercised judiciously and not as a matter of course. The fact that
\nthe sentence is for a fixed period and that the accused was on bail
\npending trial can be one of the relevant considerations for the
\npurpose of suspending the substantive order of sentence but, they
\ncannot be the sole consideration.\n<\/p>\n
\tI
\nam of the view that while considering the application for suspension
\nof substantive order of sentence, the endeavour should be to see as
\nto whether the case presented by the prosecution and accepted by the
\ntrial Court can be said to be a case in which, ultimately, the
\naccused-appellant stands for fair chances of acquittal. If the answer
\nto the above stated question is in the affirmative, as a necessary
\ncorollary, I shall have to see that if ultimately the
\naccused-appellant appears to be entitled to have acquittal at the
\nhands of this Court, he should not be kept behind the bars for a
\npretty long time till the conclusion of the appeal, which, usually
\ntakes very long time for decision and disposal.\n<\/p>\n
\tI
\nhave gone through the case of the prosecution. I have also gone
\nthrough the judgment of the trial Court and considering the nature of
\nthe evidence on record, though at the stage of considering an
\napplication under Section 389 of the Code for suspension of sentence
\nthe Court cannot appreciate the evidence but, at least the Court can
\nlook into the reasonings assigned by the trial Court along with some
\nevidence on record.\n<\/p>\n
\tIn
\nthe present case, prima facie, I am of the view that the offences
\npunishable under Sections 395 and 397 IPC are not sustainable. This
\nis my prima facie opinion. The reason for this is obvious. Case of
\nthe prosecution right from the beginning appears to be very specific
\nand clear. It appears that the first informant, the injured,
\ndeveloped some intimacy with a girl named Gitaben Patel. As a result
\nof this intimacy they got married. The accused-applicant herein and
\nthe other co-accused who have been convicted by the trial Court are
\nall very close relatives of Gitaben Patel. They did not approve the
\nrelations of the first informant, the injured with Gitaben and also
\ngot annoyed by the fact that the first informant got married with
\nGitaben without the consent of the family members of Gitaben. Due to
\nthis reason, it appears that on the fateful day of the incident a
\nquarrel ensued, as a result of which the first informant was badly
\nthrashed by the accused-applicant along with the other co-accused and
\nthis was with the sole intention of teaching him a lesson for taking
\nthe extreme step of getting married with Gitaben surreptitiously.\n<\/p>\n
\tNow,
\nin this background, it appears that the prosecution came forward with
\na case that when the first informant was being assaulted, at that
\npoint of time, the accused-applicant and the other co-accused
\nsnatched away some gold ornaments, a watch, mobile phone and some
\ncash. It is the case of the prosecution that the first informant i.e.
\nthe injured and his witnesses were robbed of these articles on a gun
\npoint. Firstly, it deserves to be noted that the accused-applicants
\nhave been acquitted from the charge under the Arms Act.\n<\/p>\n
   \tNow,
\nin this background of the entire prosecution case and the evidence on
\nrecord, can it be said that the common object of the unlawful
\nassembly was to commit an offence of dacoity. Can it be said that the
\nmotive behind the crime was commission of dacoity or whether the
\ncommon object of the unlawful assembly was to thrash the first
\ninformant for the reason that he developed intimacy with Gitaben and
\ngot married with Gitaben surreptitiously without seeking any
\npermission from the family members of Gitaben. This is the core issue
\nwhich, prima facie, needs to be considered in the appeal. However,
\nprima facie, I am of the view that without going much into
\nappreciation of evidence the conviction under Sections 395 and 397
\nappears to be unsustainable. I am of the view that the Court owes a
\nduty to consider, as to whether the accused has a fair chance of
\nsucceeding in the appeal or not ? I may consider my prima facie
\nopinion in light of what has been explained by the Division Bench of
\nthis High Court so far as Section 390 of IPC is concerned. The
\nDivision Bench of this High Court, in the case of Himatsing
\nShivsing v. The State of Gujarat,<\/a> reported in 1961 GLR 678,
\nhas observed as under:-\n<\/p>\n
 Theft
\namounts to ‘robbery’ if, in order to the committing of the theft, or
\nin committing the theft, or in carrying away or attempting to carry
\naway property obtained by the theft, the offender for that end,
\nvoluntarily causes or attempts to cause to any person death or hurt
\nor wrongful restraint, or fear of instant death or of instant hurt,
\nor of instant wrongful restraint. Before theft can amount to
\n‘robbery’, the offender must have voluntarily caused or attempted to
\ncause to any person death or hurt or wrongful restraint, or fear of
\ninstant death or of instant hurt, or of instant wrongful restraint.
\nThe second necessary ingredient is that this must be in order to the
\ncommitting of the theft, or in committing the theft, or in carrying
\naway or attempting to carry away property obtained by the theft. The
\nthird necessary ingredient is that the offender must voluntarily
\ncause or attempt to cause to any person hurt etc., for that end, that
\nis, in order to the committing of the theft or for the purpose of
\ncommitting theft or for carrying away or attempting to carry away
\nproperty obtained by the theft. It is not sufficient that in the
\ntransaction of committing theft hurt etc., had been caused. If hurt
\netc., is caused at the time of the commission of the theft but for an
\nobject other than the one referred to in sec.390, I.P.Code, theft
\nwould not amount to robbery. It is also not sufficient that hurt had
\nbeen caused in the course of the same transaction as commission of
\nthe theft. The three ingredients mentioned in sec.390, I.P.Code, must
\nalways be satisfied before theft can amount to robbery, and this has
\nbeen explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476,
\nin the following words:-\n<\/p>\n
  The
\nwords “for that end” in sec.390 clearly mean that
\nthe hurt caused by the offender must be with the express object of
\nfacilitating the committing of the theft, or must be caused while the
\noffender is committing the theft or is carrying away or is attempting
\nto carry away the property obtained by theft. It does not mean that
\nthe assault or the hurt must be caused in the same transaction or in
\nthe same circumstances.\n<\/p>\n
In
\nKaruppa Gounden v. Emperor, A.I.R. 1918 Madras 321,
\nwhich followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi
\nManjhi,<\/a> 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N.
\n72, it has been observed at page 824 as follows :\n<\/p>\n
  Now
\nit is our duty to give effect to the words “for that end”.
\nIt would have been open to the legislature to have used other words
\nwhich would not raise the difficulty that arises here. The Public
\nProsecutor has been forced to argue that “for that end”
\nmust be read as meaning ‘in those circumstances’. In my opinion we
\ncannot do that in construing a section in the Penal Code.
\nUndoubtedly, words ‘in those circumstances’ would widen the
\napplication of the section and we are not permitted to do that. The
\nmatter has been considered in two judgments of the Calcutta High
\nCourt one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi
\n5 C.W.N. 372. Their Lordships put the question in this way:\n<\/p>\n
  It
\nseems to us that the whole question turns upon the words “for
\nthat end”. Was any hurt or fear of instant hurt, that was
\ncaused in the present case, caused for the end of the commission of
\nthe theft ? We think not. It seems to us that whatever violence was
\nused for the purpose of dispossessing the persons who were already in
\npossession of the premises in question and had no relation to the
\ncommission of theft, although theft was committed at the same time.\n<\/p>\n
The
\nlanguage used in another case reported as King Emperor v. Mathura
\nThakur, 6 C.W.N. 72, is as follows :-\n<\/p>\n
 The
\nquestion here arises whether Mathura Thakur when he attacked Soman
\nDhania, did so for the end referred to, namely, for the purpose of
\ncarrying away the paddy, which had been harvested.\n<\/p>\n
Those
\njudgments in my opinion state the obvious intention of the section
\nand we are bound to give effect to it and I, therefore, follow the
\ndecisions in those two cases.\n<\/p>\n
\tIn
\nthe last paragraph of the judgment, the Division Bench observed as
\nunder:-\n<\/p>\n
 Ordinarily,
\nif violence or hurt etc. is caused at the time of theft, it would be
\nreasonable to infer that violence or hurt was caused for facilitating
\nthe commission of theft or for facilitating the carrying away of the
\nproperty stolen or for facilitating the attempt to do so. But, there
\nmay be something in the evidence to show that hurt or violence was
\ncaused not for this purpose but for a different purpose.\n<\/p>\n
\tIn
\nthe overall conspectus of the entire matter, I am of the view that
\nthe accused-applicant is entitled to seek suspension of the
\nsubstantive order of sentence imposed by the trial Court pending
\nfinal disposal of the Appeal. No exceptional circumstances have been
\nbrought on record by the State to deny suspension of sentence pending
\ntrial.\n<\/p>\n
\tIt
\ngoes without saying that any observation touching the merits of the
\ncase is purely for the purpose of deciding the questions of
\nsuspension of substantive order of sentence pending appeal and grant
\nof bail and shall not be construed as an expression of final opinion
\nin the main matter.\n<\/p>\n
   \tIn
\nthis view of the matter, the Application succeeds and the same is
\nallowed. The substantive order of sentence imposed by the trial Court
\nvide judgment and order dated 21st May 2011 passed in
\nSessions Case No.159\/2007 is suspended till the final disposal of the
\nsubstantive appeal and the accused-applicant is ordered to be
\nreleased on bail on his furnishing a bond of Rs.25,000=00 (Rupees
\nTwenty Five Thousand Only) with solvent surety of the like amount to
\nthe satisfaction of the trial Court, on the following terms and
\nconditions that the accused-applicant:-\n<\/p>\n
(a)
\nshall maintain law and order.\n<\/p>\n
(b)
\nshall not indulge in any activity leading to \tbreach of public peace
\nand tranquility.\n<\/p>\n
(c)
\nshall not, in any manner, try to approach \tthe prosecution witnesses.\n<\/p>\n
(d)
\nshall not leave the State of Gujarat without \tprior permission of
\nthis Court.\n<\/p>\n
\tRule
\nmade absolute.\n<\/p>\n
(J.B.PARDIWALA,
\n\t\t\tJ.) <\/p>\n
\/moin<\/p>\n
\tPage
\n\t  23 of  23<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Rajeshkumar vs State on 6 June, 2011 Author: J.B.Pardiwala,&Nbsp; Gujarat High Court Case Information System Print R\/CR.MA\/7267\/2011 JUDGEMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 7267 of 2011 In CRIMINAL APPEAL no 640 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-132284","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRajeshkumar vs State on 6 June, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajeshkumar-vs-state-on-6-june-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajeshkumar vs State on 6 June, 2011 - 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