MUKESH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application has been filed under Sec. 389 of Cr.P.C., by the applicant - appellant namely Mukesh @ Maya Dineshbhai Thakore, seeking suspension of his sentence pending Criminal Appeal No.838 of 2021 arising out of the judgement and order dtd. 12.01.2021 passed by the learned City Civil and Sessions Judge, Court No. 18, Special Atrocity Court, Ahmedabad in Special Atrocity Case No. 4 of 2015.

(2.) By order dtd. 07.10.2021, the Registry was directed to call for record and proceedings of Special Atrocity Case No. 4 of 2015.

(3.) Mr. Darshit Brahmbhatt, learned advocate appearing for the applicant - appellant, would submit that the applicant was initially arrested only on the statement made by the co- accused, whose name was given by the complainant namely Maheshbhai Solanki. Though his name was not disclosed in the FIR and it was referred some 3 rd person, who had allegedly attacked the deceased. He would submit that the FIR at Exh. 194, does not disclose the name of the applicant. Though the applicant was not named in the FIR, he was arrested immediately on the next date of occurrence of incident. He would further submit that no Test Identification parade has been arranged by the Investigating Officer. He would submit that as per the deposition of the Investigating Officer, there was no need to arrange the Test Identification parade in view of the fact that the co-accused disclosed the name of present applicant, which cannot be accepted as an evidence. He would further submit that as per the say of eye witness, the applicant was known to them. He would submit that for the first time, name of the applicant was disclosed by one of witness namely Aartiben in the month of July, 2014. He would further submit that even the statement under Sec. 164 of Cr.P.C. made before the learned Magistrate on 21.01.2015 i.e. after a period of about 8 months. He would further submit that the knife, which is allegedly discovered from the open place at the instance of the applicant; however, no blood stains have been found.