VISHNUKUMAR LAXMANBHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of the present application under Sec. 389 of the Code of Criminal Procedure, 1973, the applicants - accused are seeking suspension of sentence and release on regular bail during pendency of the present appeal against the judgment and order of conviction dtd. 7/3/2024 passed in Special Atrocity Case No. 4 of 2020 by the learned 5th Additional Sessions Judge, Mehsana, whereby, the present applicants - accused were sentenced to life imprisonment (rigorous) and fine of Rs.1,50,000.00 each and in default, one year simple imprisonment for the offence punishable under Ss. 302 read with Sec. 114 of IPC and life imprisonment (rigorous) and fine of Rs.50,000.00 each and in default, six months simple imprisonment for the offence punishable under Ss. 3(2)(5) of Schedule Caste and Schedule Tribes (Prevention of Atrocity) Act. The learned Trial Court as pleased to order that both the sentences shall run concurrently.

(2.) Learned Advocate Mr. Bhargav Bhatt for learned advocate Mr. Kishan R. Chakwawala for the applicants submits that the applicants are in custody for more than four years and seven months and the applicants have a good case on merits as the case against the applicants rests entirely on circumstantial evidence, but in the evidence, there are no circumstances that point towards the guilt of the applicants. The complainant who is the father of the deceased has stated that on 12/2/2020, he received a call from Naroda Police Station that his son was arrested by them and thereafter on 13/2/2020, he received a call and was informed that his son had expired. That he went to the Mehsana Civil Hospital and saw the injuries on the dead body of his son and came to know that his son was beaten and he had expired due to the injuries as he was physically and mentally tortured and beaten by the applicants. Learned Advocate submits that the medical officer who has performed the post mortem on the body of the deceased has stated that the injuries were simple in nature and individually not sufficient to cause death and the prosecution has failed to prove a direct nexus between any individual injury caused to the deceased and the cause of death. The prosecution has failed to prove that the cause of death is directly attributed to the injuries caused by the applicants and there is no evidence that the present applicants are involved in the offence beyond reasonable doubts. Learned Advocate further submits that the learned Trial Court has not appreciated that the applicants have not been identified by any person and PW30 has stated that he could not find anyone causing injury to any person and from the CD he could not identify the applicants and the identification of the applicants was on the basis of assumptions. Learned Advocate further submits that there was a misconduct committed by the deceased as it appears from the record that he had escaped from the Zonal Safety Home and pursuant to regaining the custody, hurt was caused which was neither grievous not sufficient to cause death and under the circumstances, the ambit of the offence either falls within the realm of Sec. 324 or Sec. 330 of the Indian Penal Code. The postmortem note fails to prove that the death was homicidal and considering the long period of incarceration of the applicants and the evidence on record, the applicants have a good case on merits. Learned Advocate submits that the applicants have given the respondent no. 2 - original complainant an amount of Rs.5 lakhs each and an amount of Rs.15 lakhs has been given as compensation and the respondent no. 2- original complainant has accepted the same and has also filed an affidavit to that effect. Hence, considering the case on merits and the long period undergone, the application of the applicants may be considered and the applicants be released on bail on any terms and conditions as this Hon'ble Court deems fit.

(3.) Learned Advocate Mr. Rajesh Dewal for the respondent no. 2 - original complainant has produced the acknowledgment affidavit of the original complainant.