RAMJI @ RAMLO PRAGJI MARAKANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant-?convict seeks suspension of the execution of the sentence awarded by the learned 4th Additional District and Sessions Judge, Gondal in Sessions Case No.88 of 2003 and further seeks to be released on bail subject to such conditions as may be deemed fit.

(2.) Mr. Himanshu C. Desai, learned advocate for the applicant, invited the attention of the court to the testimony of prosecution witness No.2, Rajshreeba Jitendrasinh Jadeja, to submit that she is not a reliable witness, as she has changed her version from time to time. Reference was made to the 'vardhi' recorded by the concerned PSO, at the instance of the Medical Officer on 14.05.2003, to submit this was the first information received by the police as regards the incident, wherein there is reference to four to five assailants who had assaulted the deceased, whereas in the first information report lodged by this witness, she has stated that there were about eight persons. It was submitted that, therefore, the witness has improved her version while lodging the complaint, which raises doubts about the number of persons who had attacked the deceased. It was submitted that the witness, in the first information report as well as in her statement recorded by the police, has not given any description of the assailants, including the applicant herein. Moreover, insofar as the present applicant is concerned, the witness has not identified him in the test identification parade and has identified him for the first time in the dock after a period of seven years.

(3.) Opposing the application, Mr. H.K. Patel, learned Additional Public Prosecutor, submitted that there are several circumstances against the applicant and the prosecution has succeeded in proving the chain of circumstances, which unerringly point towards the guilt of the applicant. Reference was made to the testimony of prosecution witness No.5, Dilipsinh Pravinsinh Rana, brother of deceased Vikramsinh, to submit that from the testimony of this witness it is established that they had purchased Rajwadi from Gunadityasinh Jadeja, who was the owner and has also paid consideration of Rs.1.5 lakh by way of a demand draft and that Vikramsinh was looking after the Rajwadi; since Gunadityasinh Jadeja was not executing a sale deed, a suit had been instituted against him and status quo was obtained; that without the knowledge of the witness and Vikramsinh, Gunadityasinh Jadeja had executed a deed in favour of Ramji Markana, the applicant herein; till the deed was executed in favour of the applicant, Rajwadi was in their possession; when Vikramsinh was not present at the Rajwadi, the applicant and his people entered the same, though no complaint had been lodged in this regard with the police. It was pointed out that from the testimony of this witness it also emerges that after he and Arjun came to Gondal, they first met Rajshreeba and obtained details about the sequence of events and then went in search of Vikramsinh, whose dead body was found in a ditch on the road side near Meldimata temple and that it is because of the dispute relating to Rajwadi that Vikramsinh has been done to death. It was submitted that, thus, the connection between Rajwadi and the applicant has been duly established.