MAHESHBHAI BHURABHAI SOLANKI 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 order of sentence dated 10.05.2018 passed by the learned Sessions Judge, Mahisagar at Lunawada in Sessions Case No.130 of 2017.

(2.) The prosecution case is that the deceased Rameshbhai @ Bhalabhai came to know about the illicit relationship of his wife Kokilaben (accused No.1) with the applicant - Maheshbhai Bhurabhai Solanki (accused No.2). On 18.11.2018, at around 1800 - 2100 hours, when Rameshbhai @ Bhalabhai and Kokilaben (accused No.1) were returning to their home on their bike on the road leading towards Saradiya village, the accused No.2, in collusion with accused No.1, came on his motor ?cycle and stopped Rameshbhai @ Bhalabhai and hit an iron hammer on his head and thereafter, after calling accused No.3, they threw the dead body of Rameshbhai @ Bhalabhai in a nearby ditch.

(3.) Mr. Darshit Brahmbhatt, learned advocate for the applicant, invited the attention of the court to the testimonies of the witnesses and the findings recorded by the trial court to submit that no admissible evidence has been adduced by the prosecution so as to prove the charge against the present applicant. Strong reliance was placed upon the findings recorded by a coordinate Bench in the application under section 389 of the Code made by the co ?convict - Kokilaben, w/o. Rameshbhai Solanki, wherein the court has recorded that it had cursorily looked into the evidence on record to ascertain the involvement of the accused No.2, namely the applicant herein. However, it could not find any such material. The court further noted that the motive behind the commission of the crime, which, according to the prosecution, is the illicit relationship of the accused No.1 with accused No.2, but the evidence in this regard is practically nil. It was, therefore, submitted that this court while considering the bail application of accused No.1 has recorded findings to the effect that there is no evidence against the present applicant. It was, accordingly, urged that the applicant has a prima facie case in his favour and is likely to succeed in the appeal and hence, the execution of the order of sentence be suspended and the applicant be released on bail.