MUKESHBHAI KANTIBHAI SODHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under section 389(1) of the Code of Criminal Procedure, 1973, the applicants-convicts seek suspension of the judgment and order of conviction and sentence dated 5.4.2019 passed by the learned Third Additional Sessions Judge, District Kheda at Nadiad in Sessions Case No.40 of 2016 and seek to be enlarged on bail pending the admission, hearing and final disposal of the appeal.

(2.) Mr. D. K. Desai, learned advocate for the applicants invited the attention of the court to the evidence of the witnesses and the findings recorded by the court. It was submitted that the first version given before the police by the mother of the deceased was that of accidental death and that subsequently, the first information came to be lodged after a period of three months and the statements of the witnesses came to be recorded, on the basis of which the accused have been convicted for the offence under section 302 read with section 149 and sections 143 , 147 , 323 and 502 of the Indian Penal Code, and sentenced to life imprisonment for the offence under section 302 read with section 149 of the Indian Penal Code and fine of Rs.5000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months. The attention of the court was also invited to the findings recorded by the trial court, to submit that the trial court has failed to appreciate the evidence on record in proper perspective while convicting the applicants of the offence in question. It was accordingly urged that the applicants have a good prima facie case and are likely to succeed in the appeal, under the circumstances the impugned order of sentence is required to be suspended during the pendency of the appeal.

(3.) Vehemently opposing the application, Ms. C.M. Shah, learned Additional Public Prosecutor submitted that the prosecution, through the evidence of the witnesses has duly established the charge against the applicants accused. It was submitted that while an accidental death had been recorded at the initial stage, it was found that in fact the deceased had sustained injuries, and hence, the first information came to be lodged and the eyewitnesses have been examined, and on the basis of their testimonies, the prosecution has duly proved the charge against the accused. It was submitted that, therefore, no case is made out for suspension of the order of conviction and sentence.