IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 20850 of 2016 In CRIMINAL APPEAL NO. 1220 of 2016 ========================================================== RAMANBHAI NANABHAI PATEL....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance: MR YM THAKKAR, ADVOCATE for the Applicant(s) No. 1 MR KL PANDYA, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 15/09/2016
1. Present application has been preferred by the applicant-original accused under section 389 of the Code of Criminal Procedure, 1973 to enlarge the applicant on bail pending appeal by suspending his conviction which has been imposed by the learned 3rd Additional Sessions Judge, Panchmahal at Godhra, vide judgment and order dated 9.3.2016 passed in Sessions Case No.181 of 2013 whereby he was convicted and sentenced to undergo RI for ten years and to pay fine of Rs.2,000/-, in default, to suffer further SI for six months for the offence punishable under section
307 of the Indian Penal Code.
2. Heard learned advocate, Mr. Y. M. Thakkar for for the applicant and learned APP, Mr. K.L. Pandya for the respondent-State.
3. Rule. Learned APP, Mr.K.L.Pandya for the respondent- State waives service of rule.
4. Mr. Thakkar has mainly submitted that the punishment imposed on the applicant by the trial court appears to be little harsh more particularly when none of the witnesses i.e. complainant or even the victim had come up with a whisper in the deposition that accused has caused such injury with an intention to cause the death/bodily injuries. Moreover, there was no motive with the applicant to attack the victim, but just out of frustration and anger, on account of being advised instead of being helped to stop the fire, the alleged incident had taken place. He has further submitted that material requirement to convict a person for the offence punishable under section 307 of IPC is to prove the intention or knowledge on the part of the accused to cause death. In absence of any such intention or knowledge, the prosecution, as such, has failed to bring home the charge of section 307 of IPC against the accused, but the Court has not properly considered the evidence appearing on the record. According to him, there is no possibility of this appeal being heard in near future and therefore, he has requested to enlarge the applicant on bail by suspending his sentence. 4.1 In this connection, he has relied on a decision of this Court in the case of Prakash Chandra Yadav Vs. State of Bihar reported in AIR 2007 SC (Supp) 488 wherein it has been held in paragraphs 12 to 14 as under:
12. From a bare perusal of the said provision, it is evident that first part thereof does not contemplate that receipt of any injury on the part of the victim is a pre-requisite for convicting an accused thereunder. In the event injuries are received, the second part of Section 307 would be attracted. The necessary ingredients for attracting the first part of Section 307 of the Indian Penal Code is intention or knowledge. The legal position would be evident from the illustration (c) appended to the said provision which reads as under : "(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section." 13. Mr. V. Shekhar, learned senior counsel appearing on behalf of the respondent has drawn our attention to a decision of this Court in Parsuram Pandey and Ors. v. State of Bihar [(2004) 13 SCC 189] wherein, inter alia, it was held : "To constitute an offence under Section 307 two ingredients of the offence must be present : (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence "of attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place."
14. The said decision, therefore, itself is an authority for the proposition that intention of or knowledge relating to the commission of murder and the doing of an act towards it are the two ingredients of the offence under Section 307 of the Indian Penal Code.
4.2 In the case on hand, there was no intention or knowledge on the part of the applicant to commit murder and therefore, according to him, applying the aforesaid ratio to the facts of the present case, punishment should have been scaled down by the learned trial Judge and therefore also, the applicant deserves to be enlarged on bail.
5. Learned APP, Mr. Pandya, for the respondent-State has submitted that looking to the oral as well as the documentary evidence on record, as the case against the accused has been proved by the prosecution beyond reasonable doubt, the conviction and sentence imposed on the applicant was just and proper and therefore, the applicant need not be enlarged on bail pending his appeal.
6. This Court has considered the rival submissions made by the learned advocates appearing for the respective parties together with the impugned judgment and order of conviction and sentence.
7. Ex-facie, it appears from the oral as well as the documentary evidence that neither the complainant nor the victim has supported the case of the prosecution and therefore, in view of the decision rendered in Prakash Chandra Yadav (supra), the applicant has brought out a good case for being released on bail. However, it would not be proper for this Court to appreciate the entire evidence on record as it may prejudice the parties at the time of final hearing of the appeal. Further, looking to the pendency of appeals before the Court, the appeal of the present applicant may not be heard finally in the near future and therefore, the applicant cannot be kept in jail till such period.
8. In view of the above, this application is allowed. Pending hearing and final disposal of his Criminal Appeal, conviction imposed on the applicant by the the learned 3rd Additional Sessions Judge, Panchmahal at Godhra, vide judgment and order dated 9.3.2016 passed in Sessions Case No.181 of 2013 is suspended and the applicant is ordered to be released on bail on his executing personal bond of Rs.5,000/- (Rupees Five Thousand only) with one surety of like amount and on conditions that he shall :-
a)not take undue advantage of his liberty or abuse his liberty;
b)maintain law and order ;
c)not leave the State of Gujarat without prior permission of this Court;
d)furnish the address of his residence to the Investigating Officer and also to the Court with documentary proof of residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;
e) surrender his passport, if any, to the lower Court within a week.
9. Rule is made absolute. Direct service is permitted.
10. Observations by this Court in this order being made for the purpose of deciding this application may not prejudice the parties at the time of final hearing of the appeal. (G.B.SHAH, J.) RADHAN