AMARATBHAI RATANSHIBHAI MALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application has been filed under Sec. 389 of the Code of Criminal Procedure, 1973 by the applicant - appellant - original accused No. 3 - Amaratbhai Ratanshibhai MALI, pending the Criminal Appeal No. 1414 of 2021, seeking suspension of his sentence dtd. 3/7/2021 passed by the learned 8th (Ad-hoc) Additional Sessions Judge, at Diyodar, District Banaskantha in Sessions Case No. 137 of 2015, whereby the applicant herein has been convicted for the offences punishable under Ss. 302, 120(B) and 114 of the Indian Penal Code, 1860 and sentenced to undergo life imprisonment with fine of Rs.5000.00 and in default of payment of fine, further simple imprisonment of 30 days.

(2.) Learned advocate for the applicant has produced oral as well as documentary evidences in the form of paper-book, which was also supplied to the learned APP.

(3.) Learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. Yash Nanavaty appearing for the applicant - appellant would submit that there is no eye-witness to the incident. By taking us through the deposition of one police witness viz. Hirabhai Bhimabhai Patel (PW-17, Exh. 49), he would submit that pursuant to the information received by him from co-accused viz. Gajabhai Shankarbhai Mali, he had reached the place of incident where it was disclosed by said co-accused Gajabhai that the deceased was his real nephew and pursuant to a scuffle, he sustained injuries. He would further submit that though he has disclosed that in all three persons were standing on the place of offence, he found the injured near the house of said Gajabhai Mali. He would further submit that the present applicant who is cousin brother of the deceased reached at the place and traveled alongwith the injured to the hospital pursuant to which some blood stains have been found on his clothes as well. Except this aspect, there is no other material implicating the present applicant. He would submit that though there were three persons allegedly on the place of offence, there is no Test Identification Parade arranged by the investigating agency. Learned Counsel Mr. Nanavaty has therefore requested to consider the applicant for suspension of sentence.