IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.

1 of 2021 In R/CRIMINAL APPEAL NO. 1566 of 2021 ================================================================

SANJAYKUMAR @ BHIMO THAKORBHAI PATEL Versus STATE OF GUJARAT ================================================================

Appearance:

MR. K.S.CHANDRANI, ADVOCATE for MR. MAULIK M SONI(7249) for the PETITIONER(s) No. 1 MR MEET D PANSURIA(10170) for the RESPONDENT(s) No. 2 MS. SHRUTI PATHAK, APP, for the RESPONDENT(s) No. 1 ===============================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 08/06/2023

IA ORDER

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. RULE. Learned APP waives service of Rule on behalf of the Respondent–State.

2. The present application is filed for suspension of sentence /permanent bail under Section 389 of the Criminal Procedure Code by the convict of offence under Sections 304(1), 323, 504 of the Indian Penal Code and under Sections 3(i)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the 5^th Additional Sessions Judge, Anand in Special Atrocities Case No.98 of 2017 by judgment and order dated 07.10.2021.

3. The appeal was admitted by order dated 10.02.2022. The applicant has already undergone more than three years and eight years out of six years of imprisonment till date.

4. It appears that the applicant that on 01.10.2017, in early hours in the morning while the complainant and the deceased were sitting and watching Garba, at that time accused No.1 (applicant) came over and confronted by using abusive language and when the complainant and the deceased reciprocated, at that time, the applicant-accused No.1 called other six persons from the vicinity and by forming the illegal assembly caught hold of the complainant while remaining persons lifted the deceased Jayesh and threw him with force on a compound wall and gave him a fists and cuff blows because of which the deceased Jayesh expired. In view of the aforesaid incident, the FIR came to be registered with Bhadran Police Station.

5. Learned advocate for the applicant submitted that the case is at the best the case under Section 304 of the IPC and cannot be termed to be the offense under Section 302 of the IPC. It is submitted that the nature of injuries sustained by the deceased does not attribute any role to the applicant nor does the theory of the prosecution supports the case of premeditation or meeting of mind with others to carry the assault. It is submitted that the only role attributed to the applicant even by the version of eye witnesses is catching hold of the deceased by the neck however, nature of injuries sustained and the medical evidence does not attribute injury on the neck to be cause of death, but the cause of death is on account of the previous medical conditions suffered by the deceased himself, which was not known by the applicant. It is submitted that the applicant and other six persons were charged with offense under Sections 302, 143, 147, 149, 323 and 504 of the IPC and Sections 3(i) (r) (z-a) (a) (d), 3(ii) and (5-A) of the Atrocities Act, however, the Sessions Court was pleased to acquit all the other accused except for convicting the present applicant and sentencing him for offense under Sections 304(1) of the IPC and sentenced him for a period of six years of simple imprisonment. It is therefore, submitted that the entire case should fail considering the acquittal of rest of the accused and though the entire role of lifting and flunging the deceased is attributed to the remaining accused.

6. Learned Additional Public Prosecutor has objected to the grant of application by submitting that the State has already preferred a separate appeal against the acquittal of the other accused as well as non-conviction of the applicant for offense under Section 302 of the IPC. Learned APP has drawn attention of this C