MAYUR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of the present application under sec. 389 of the Code of Criminal Procedure, 1973, (' Cr.P.C .', for short), the applicant - convict has prayed to suspend the sentence imposed by the learned 3rd Additional Sessions Judge, Nadiad vide order dtd. 25/3/2021 passed in Sessions Case No.11 of 2016 whereby the applicant has been convicted for offence under Sec. 302 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.10,000.00 and in default of making payment of fine, he has been ordered to undergo further two months simple imprisonment. The applicant - convict has also been convicted for offence under Sec. 25(a) of the Arms Act and sentenced to undergo seven years simple imprisonment with fine of Rs.5,000.00 and in default of making payment of fine, he has been ordered to undergo further six months simple imprisonment. The learned Sessions Judge, however, ordered that all sentences should run concurrently.

(2.) The appeal has been admitted by co-ordinate bench of this Court on 9/6/2021. As per the said order, the learned advocate has produced record and proceedings with the paper-book, which was supplied to learned Additional Public Prosecutor.

(3.) Mr.Panchal, learned advocate for the applicant would submit that the applicant has been wrongly tried before the learned sessions judge, since from the inception of the crime, his name has never been disclosed either by the complainant in the FIR, before medical officer, etc. He would submit that, initially complainant had given names of three persons, who had allegedly assaulted the deceased, who was going on his two- wheeler. Except three persons, even there is no reference of presence of any fourth person at the place of scene of offence. He would submit that as per the First Information Report, one Ashok @ Arko @ Bhuriyo had taken part pursuant to which the deceased succumbed to the injury in the hospital. He would submit that it is the case of the cross First Information Report, wherein initially it was alleged that grand-father of the applicant had open-fire but before the police authorities he had disclosed the name of the present applicant, who happens to be the grandson, pursuant to which deceased sustained injury. He would submit that even the fire-arm is registered in the name of grand-father and during the cross-examination, in the present case, they denied that any such statement is made before the police. He has taken us through police diary, First Information Report, history recorded by the Medical Officer, wherein names of three others persons have been referred ultimately who have been examined by the prosecution to prove their case. However nothing has been found in their depositions.