IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 1 of 2025 In R/CRIMINAL APPEAL NO. 1027 of 2017 ==========================================================

PINTUBHAI @ KALIO DOLUBHAI VASAVA Versus STATE OF GUJARAT & ANR.

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Appearance:

THROUGH JAIL for the PETITIONER(s) No. 1 NOTICE NOT RECD BACK for the RESPONDENT(s) No. 2 MR LB DABHI, APP for the RESPONDENT(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR.JUSTICE P. M. RAVAL Date : 01/10/2025

IA ORDER

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. This application is filed by the convict original accused no.2 with a prayer for suspension of sentence and grant of bail. The applicant and other accused Ajay Vasava were prosecuted and tried for the offence of murder. According to the prosecution case, the accused used to demand a sexual favour from deceased Parvatiben which she denied as and when the accused asked and in that view of the matter, keeping grudge on refusal of the deceased for sexual favour, the accused inflicted a fatal injury on the person of the deceased when she was in the farm for cutting grass. The material witnesses before the Trial Court have turned hostile. The prosecution case rests on the circumstantial evidence. The Trial Court while convicting the accused recorded that the accused was lastly seen in the company of the deceased and before the murder, they met the deceased and while refusing by the deceased for maintaining physical relationship, the accused threatened him to kill her. On the basis of aforesaid circumstances, the Trial Court held that the circumstances as relied by the prosecution having been proved and established and formed a complete chain that the crime was committed by the accused and no one else.

3. Mr.Darshan Dave, learned advocate who has filed the appeal, has submitted that except the evidence of last seen together, the circumstances as referred having not been established and therefore, the conviction based on the last seen theory without other corroborative evidence is not sustainable in eye of law. In such circumstances, it is prayed that when the accused has completed 10 years and 7 months of imprisonment and till date, his conviction appeal is not on board of final hearing, the prayer made by the convict through jail may be considered.

4. On the other hand, Mr.L.B. Dabhi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that having regard to the gravity of the offence, the Court may not entertain this application and the same may be dismissed.

5. Issue arises as to whether the applicant has made out a case for suspension of sentence?

6. We have carefully examined the case records and considered the submissions made at the bar. It is no doubt true that as on date, the incarceration period of the convict herein is 10 years and 7 months. In the facts of the present case, the prosecution rests on circumstantial evidence and when the case is based on the circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The Apex Court has, time and again, has observed and held that the evidence of last seen together is a weak peace of evidence and conviction only on the basis of last seen together without their being corroborative evidence is not sufficient to convict the accused. In such circumstances, having regard to the facts of the present case and evidence on record, in particular the period of incarceration, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of suspension of sentence and grant of bai