AFROZ SARKUDIN ANSARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under section 389 of the Code of Criminal Procedure, 1973, the applicant convict seeks suspension of the execution of the sentence imposed upon the applicant vide judgment and order dated 24.7.2018 passed by the learned Third Additional Sessions Judge, Gandhidham Kutch in Sessions Case No.4 of 2017 and seeks to be enlarged on bail during the pendency of the appeal.

(2.) Mr. J.M. Panchal, learned counsel with Mr. Ruturaj Nanavati, learned advocate for the applicant, submitted that this is a case where no circumstance against the applicant has been legally proved. It was submitted that the prosecution case is that in the past the applicant had given threats to the deceased and an offence had come to be registered against him. Adverting to the offence is question, it was submitted that even according to the prosecution, the offence has been committed by two accused namely, Rinku Rampal and Ali who are absconding and that the applicant was not present at the time of the offence. It was submitted that the allegation against the applicant is that he is the main conspirator and that the trial was conducted against the applicant alone. It was urged that the case rests on circumstantial evidence and the circumstances are not sufficient to complete the chain of events to prove the guilt of the applicant.

(3.) Vehemently opposing the application, Mr. H.K. Patel, learned Additional Public Prosecutor, invited the attention of the court to the testimony of PW-1 Majid Abdullah Bayad, namely, the informant, to submit that he was employed as a driver by the deceased and is an eye witness of the incident. Through his testimony, it has been established that two persons on a red Yamaha motorcycle had committed the offence. It was pointed out that the first information report was lodged on 1.8.2016 at 5.50 a.m. wherein there is reference to a red Yamaha motorcycle. It was further submitted that that there is evidence on record to show that prior to the incident, a first information report had been lodged against the applicant by the deceased, as the applicant had threatened the deceased.