VAGHABHAI HIRABHAI BALYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application, under Section 389 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code'), has been preferred by the applicant - appellant - original accused No. 5, praying for suspension of sentence pending appeal which has been filed against the judgment and order dated 05/04/2016, passed by the learned 3rd Additional Sessions Judge, Bhavnagar in Sessions Case No. 166 of 2013, whereby, the present applicant - appellant has been convicted for the offence punishable under Section 326 and 447 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Section 135 of the Bombay Police Act and for the offence punishable under Section 326 of the IPC, he was sentenced to undergo rigorous imprisonment for six years and a fine of Rs.5,000/ - and in default of payment of fine, to undergo, further simple imprisonment for one month. For the offence punishable under Section 447 of the IPC, he was sentenced to undergo simple imprisonment for one month and a fine of Rs.500/ - and in default of payment of fine, to undergo, further simple imprisonment for seven days, whereas, for the offence punishable under Section 135 of the Bombay Police Act, he was sentenced to undergo simple imprisonment for one month and a fine of Rs.500/ - and in default of payment of fine, to undergo, further simple imprisonment for seven days.

(2.) Heard learned advocate Mr. J. M. Panchal for Mr. Jayprakash Umot, learned advocate for the applicant - appellant - original accused No. 5 and Mr. K. L. Pandya, learned Additional Public Prosecutor, for the respondent - State.

(3.) Mr. Panchal, the learned advocate for the applicant, submitted that the applicant was on bail althroughout the trial and nothing adverse has been found against him during the trial. He submitted that in the catena of judgments, it has been held by the Hon'ble Apex Court that in a case of short sentence, an accused be normally granted bail and present case also false under the limited and short sentence. Further drawing attention of the Court to para 4 of the present application, he submitted that a large number of appeals have been pending for hearing before this Court and there is no guarantee or chances of the appeal filed by the present applicant would reach for final hearing in near future and accordingly, he requested to consider this application for suspension of sentence. He further submitted that considering the merits also, the applicant has a good case in his favour. He, by inviting attention to the paper -book consisting as many as 28 pages supplied by him, more particularly, the deposition of PW -8 - Dr. Divyasinh Narendrasinh Chudasam at exh. 65, submitted that from his examination -in -chief, it is clear that injured - Sanjaybhai Virjibhai Vaghani, had, in the history given to this witness, only stated that on 07/04/2012 at about