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

3 of 2022 In R/CRIMINAL APPEAL NO. 420 of 2020 ==========================================================

RANJITJI @ MAJOR BHIKHAJI THAKORE Versus STATE OF GUJARAT ==========================================================

Appearance:

MR NIRAV C SANGHAVI(5950) for the PETITIONER(s) No. 1 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 : 05/07/2023

IA ORDER

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

1. RULE. Learned APP Ms.Shruti Pathak 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 Section 302 of the Indian Penal Code by the learned 3^rd Additional District & Sessions Judge, Gandhinagar, in Sessions Case No.6 of 2016 by judgment and order dated 19.09.2019.

3. Learned advocate for the applicant submits that the present case is based on circumstantial evidence and prosecution has failed to establish link or chain of evidence against present applicant and the accused is convicted on the base of an assumption. The Sessions Court has relied on CCTV footage, but no CCTV Footage is duly proved or evidence is collected by the Investigating Agency. Even during investigation, the number plate of the alleged car seen in the CCTV footage is not visible. It is further submitted that even the witness- PCO Owner has not produced any receipt of the phone call to establish whether the call was made by the accused to the house of the deceased or not and even TI Parade has also not been conducted. Further, learned advocate for the applicant submits that, as stated by PW-11 Savitaben Vishnubhai Raval, who is the wife of the deceased about the alleged motive behind the crime that before the incident, the accused told her that he would kill her husband. However, she remained silent and subsequently said about the alleged motive except this, no any cogent evidence on record has been produced which connects the accused with the crime. It is further submitted that the theory of last seen together has also not been proved and the presence of the accused only at the petrol pump has been seen in footage, but it has not been proved whether the presence of the accused was seen before or after the incident. He, therefore, prays to allow the present application, as motive and presence of accused is not proved on record and prosecution has failed to prove the case against the present accused and panch witness has also turned hostile and they have not supported the case of the prosecution, hence, he has requested to allow the present application.

4. Per contra, learned APP has vehemently opposed the application and submitted that the trial Court has properly appreciated the evidence produced on record. It is further submitted that the prosecution has proved its case against the accused beyond all reasonable doubt and wife of deceased- Savitaben Vishnubhai Raval and other relatives before the learned Sessions Judge have proved on record that the deceased left at 3:00 p.m. from his house on 8^th September, 2015 and he did not return at the home and deceased was in company of the accused and during the course of investigation, evidence collected under Section 27 of the Evidence Act which is strong circumstances against the accused. It is also proved on record that the accused had a grudge against the deceased as the deceased was hindrance in the continuance of the illicit relationship with the wife of the deceased, and therefore the deceased was called and the accused planned and murdered him and threw the dead body in the canal. It is further, submitted that even the CCTV footage is sufficient evidence in which it is clearly visible that the accused fi