SAMIR @ IRFAN KHURSHID ALAMKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Application is preferred by the applicant -original accused no. 3 under Section 389 of the Code of Criminal Procedure, 1973 ["CrPC" for short] for grant of bail pending appeal and for suspension of sentence, as the applicant is convicted by the learned Addl. Sessions Judge, Bharuch by judgment and order dated 8th January 2016 passed in Sessions Case No. 21 of 2014 to undergo life imprisonment and pay fine of Rs. 5,000/=; and in default thereof, to undergo simple imprisonment for a period of one month for the offence punishable under Sections 302 & 120 -B IPC and under Section 201 IPC for one year rigorous imprisonment and fine of Rs. 1,000/=; and in default thereof, to undergo seven days simple imprisonment.

(2.) We have heard learned advocate Mr. Chetan K Pandya for the applicant and learned APP Mr. Rutvij Oza for the respondent -State.

(3.) It is submitted by learned advocate Mr. Pandya that the present applicant has been wrongly involved in the offence and consequently convicted by the learned Addl. Sessions Judge, Bharuch. According to him, no test identification parade was conducted by the Investigating Agency so far as the present applicant's involvement in the offence is concerned. That, during the trial, panchas of the applicant's arrest, who also happen to be panchas of the discovery panchnama have not supported the prosecution case. That as per the evidence, three persons had attacked at about 12 pm on 1st July 2013 at the deceased's residence and all of them have covered their face with handerchief/hand towel and one with monkey cap. That, except confessional statement of the co - accused made under Section 164 of the Code, there is no evidence or circumstances against the applicant. That, the co -accused had also retracted the confessional statement recorded on 10th September 2013, however, the learned trial Judge did not take it into consideration such retraction and thereby conviction was recorded on the basis of co - accused's confessional statement. It is further urged by the learned advocate that neither motive nor mens rea to commit murder is proved by the prosecution. That, there is no corroborative evidence to hold guilty the applicant by believing the confessional statement of the co -accused. That, the applicant is resident of State of Rajasthan and the original accused no. 1 is resident of Mumbai and there is no record to show that the applicant has any connection with the said original accused no. 1. That the original accused no. 2 has been acquitted by the trial Court, who actually was alleged to have given a contract ["Supari"] to kill her husband. Therefore, the entire case of conspiracy is not proved by the prosecution. Learned advocate Mr. Pandya further urged that it is a fundamental right of the applicant under Article 21 of the Constitution of India for speedy trial as well as speedy hearing and disposal of the appeal. That, the appeal preferred by the applicant -appeal would take a long time for hearing, and therefore, in the meantime, he should not be allowed to languish in judicial custody till disposal of the appeal. On the issue of conspiracy, he has placed reliance upon a decision of the Apex Court rendered in case of Mohd. Jamiludin Nasir v. State of West Bengal, reported in [2014] 7 SCC 443; particularly Note -E and requested this Court to allow the Application by suspending the order of sentence passed by the learned Addl. Sessions Judge, Bharuch convicting the applicant in Sessions Case No. 21 of 2014, till final hearing, disposal of the appeal and release the applicant on bail.