Bharat Laxmansinh God Rajput vs State Of Gujarat

Bela M. Trivedi, J

1 . The application has been filed by the applicant-Bharat Laxmansinh God Rajput (original accused No. 55), seeking suspension of the sentence pending the Criminal Appeal No. 1204 of 2016 arising out of the judgment and order dated 17.6.2016 passed by the Special Judge, Designated Court for Speedy Trial of Riot Cases (Gulbarg Society), Ahmedabad (hereinafter referred to as "the Special Court") in Sessions Case No. 194 of 2009.

The Special Court vide the said judgment and order had convicted in all 24 accused for various offences and the present applicant was convicted and sentenced for the offence under Section 302 and for the offences under other Sections of IPC along with other 10 accused. It may be noted that out of the said 11 accused, who were convicted and sentenced similar to the present applicant, the execution of the sentence of the seven accused has already been suspended by the Coordinate Bench by passing the orders in their respective applications.

Learned Advocate Mr. Kshitij Amin appearing for the present applicant, relying upon the order passed by the Coordinate Bench dated 30.7.2019 passed in Criminal Misc. Application No. 31 of 2019 in Criminal Appeal No. 1215 of 2016, emphatically submitted that the case of the present applicant is similar to the case of the applicant of the said application, who was accused No. 46 in the case before the Special Court. According to him, the present applicant, who was the accused No. 55 and the said accused Lakhansinh, who was accused No. 46 both were not named either in the statements before the police recorded on 5.3.2002 and in the affidavits filed before the Supreme Court on 5.3.2003, and that both were named for the first time in the statements before the SIT on 22.5.2008 and further statements recorded on 14.9.2008. Taking the Court to the evidence adduced before the Special Court, more particularly of PW-116 Saeedkhan Ahmedkhan Pathan, PW-106 Imtiyaz Sherkhan Pathan and PW-143 Altafkhan Pathan, he submitted that though PW-116 had alleged that the present applicant had given sickle blows on the back of Ayub, the said allegation was not substantiated by the said witness Ayub in his substantive evidence before the Court. He further submitted that the said witness Saeedkhan Ahmedkhan Pathan was not in a position to properly identify the applicant in the Court. As regards the PW-106 Imtiyaz Sherkhan Pathan, he submitted that he had made similar allegations against the present applicant as were made against the accused No. 46 Lakhansinh, who has been released on bail by the Coordinate Bench and that PW-143 Altafkhan Pathan had not alleged any overt act against the present applicant, and had not identified the applicant before the Special Court. He, therefore, submitted that the present applicant should be released on bail pending the appeal on the ground of parity with the accused No. 46 Lakhansinh.

However, the learned Special PP Mr. Kodekar for the respondent No. 1 State submitted that the role of the present applicant was very much established in the commission of the alleged offences on the basis of the evidence of the said three witnesses i.e. PW-116, PW-106 and PW-143, and merely because the Coordinate Bench has suspended the sentence of the accused No. 46 Lakhansinh, the present applicant could not claim parity. He further submitted that though the Coordinate Bench has recorded that the name of the accused No. 46 Lakhansinh was mentioned for the first time in the second statement recorded on 14.9.2008 before the SIT, as a matter of fact the said accused was also named in the first statement dated 22.5.2008 recorded before the SIT, nonetheless considering the seriousness of the offence the applicant may not be released on bail.

Learned Advocate Mr. Tirmizi appearing for the respondent No. 2 prosecution has supported the statements made by the learned Special PP Mr. Kodekar and further submitted that if the Coordinate Bench had released the accused No. 46 under the impression that his name was not mentioned in the first statement recorded by the SIT, the present applicant should not be granted bail on the ground of parity.

Having regard to the submissions made by the learned Advocates for the parties, and having gone through the depositions of the concerned witnesses, as also the findings recorded by the Special Court qua the present applicant-accused No. 55, and also the order dated 30.7.2019 passed by the Coordinate Bench suspending the sentence of the accused No. 46 Lakhansinh, it appears that both the accused i.e. the present applicant-accused No. 55 and the accused No. 46 Lakhansinh were not named in the statements of the witnesses recorded on 5.3.2002, nor were named in the affidavits filed before the Supreme Court on 5.9.2003. The names of both the accused surfaced for the first time in the statements before the SIT recorded on 22. 5.2008 and the further statements recorded on 14.9.2008. The said position has not been disputed by the learned Advocates for the parties. So far as the evidence against both the said accused is concerned, it appears that the Special Court had relied upon the evidence of the three witnesses i.e. PW-116, PW-106 and PW-143 for convicting the said two accused. The case of the present applicant was considered along with the case of the accused No. 54 Bharat @ Bharat Taili Shitlaprasad and the absconding accused Girish Prabhudas Sharma, and the case of the co-accused No. 46 was considered along with the case of the accused No. 2 Yogendrasinh @ Lalo Mohansinh Shekhawat and the accused No. 63 Dinesh Prabhudas Sharma. It may be further noted that while considering the case of both the accused i.e. the present applicant and the accused No. 46 Lakhansinh, the Special Court had almost relied upon the same set of evidence of PW-116, PW-106 and PW-143.

This Court, at this juncture, is not required to discuss in detail the evidence of the concerned witnesses. Suffice is to say that the PW-116 in his substantive evidence had not been able to identify the applicant like the accused No. 46 was not identified. The allegations made by PW- 106 against both the accused were believed by the Special Court and PW-143 also had not alleged any overt act against both the said accused. Hence, the case of the present applicant is very much comparable with the case of the accused No. 46, and therefore, we are inclined to consider the case of the applicant for suspension of sentence on the ground of parity.

For the reasons stated above, the present application deserves to be allowed and is allowed accordingly. The execution of the order of sentence imposed vide the judgment and order dated 17.06.2016 passed by the Special Judge, Designated Court for Speedy Trial of Riot Cases (Gulbarg Society), Ahmedabad in Sessions Case No. 194 of 2009 qua the present applicant-Bharat Laxmansinh God Rajput is hereby suspended till the final hearing of the Appeal No. 1204 of 2016. The applicant-Bharat Laxmansinh God Rajput is ordered to be released on bail, in case, he is not required in any other offence, subject to the condition that he shall furnish a personal bond of Rs. 25,000/- and one solvent surety of the like amount to the satisfaction of the concerned Special Court and subject to the further following conditions:

(a) he shall not take undue advantage of his liberty or abuse his liberty;

(b) he shall main law and order;

(c) he shall surrender his passport, if any, to the lower court, within a week and if he does not possess any passport, then he shall make a declaration to that effect before the trial court;

(d) if during the pendency of the criminal appeal any change in his residential address, permanent or temporary, takes place, then the applicant shall intimate the same to the trial court as well as the concerned Police Station;

(e) he shall not leave the limits of Gujarat State without prior permission of this Court;

(f) he shall mark his presence on the first day of every month between 3 p.m. to 5 p.m., before the nearest police station.

It is made clear that any observations made while deciding this application are merely prima facie observations made for the purpose of grant of bail and shall have no bearing on the final outcome of the Appeal.

Rule is made absolute accordingly.