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2016 DIGILAW 862 (GUJ)

Arvind Ravji Baradia v. State of Gujarat

2016-04-21

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Rule. Mr. K.P. Rawal, learned Additional Public Prosecutor waives service of Rule on behalf of respondent No. 1 - State and Ms. Subhadra Patel, learned advocate waives service of Rule on behalf of respondent No. 2. 2. By this application under Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant has prayed for cancelling of bail granted in connection with CR No. I-45 of 2015 registered with Paddhar Police Station to respondent No. 2 by the learned 3rd Additional Sessions Judge, Kutch-Bhuj in Criminal Misc. Application No. 20 of 2016 dated 30.1.2016 for the offence punishable under Sections 302, 143, 147, 148, 149, 120(B) of the IPC and Section 135 of Gujarat Police Act. 3. Heard Mr. Jayesh Dave, learned advocate for the applicant - original complainant, Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respondent - State and Mr. J.M. Panchal, learned advocate with Ms. Subhadra Patel, learned advocate for respondent No. 2. 4. Brief facts which can be culled out from the record of the application are as under:-- "That the applicant who is resident of Village Kalitalavadi, Taluka Bhuj, District Kutch was at his field situated at Village Kalitalavadi at about 07:00 p.m. on 28.6.2015 and he was walking towards his field as he had cultivated some vegetables therein. While he was passing through the field of his uncle - Randhirbhai which is adjacent to his field, at that point of time, he saw white coloured Ertiga Car of his uncle Randhirbhai and he saw his uncle alighting from his car. At that moment, suddenly about 8 persons armed with weapons like sword and wooden planks (Dhoka) assaulted his uncle Randhirbhai and because of the injuries sustained, he saw his uncle felling down near his Car. It is the case of the prosecution that the applicant - original complainant saw Raghu Govind Dangar, his son - Prakash Raghu Dangar (respondent No. 2 herein) having sword in their hand and Ramesh Govind Dangar and Pravin Raghu Dangar having wooden plank in their hand along with four other persons and that the applicant - complainant could identify him. It is the case of the prosecution that the applicant - original complainant saw Raghu Govind Dangar, his son - Prakash Raghu Dangar (respondent No. 2 herein) having sword in their hand and Ramesh Govind Dangar and Pravin Raghu Dangar having wooden plank in their hand along with four other persons and that the applicant - complainant could identify him. It is further the case of the prosecution that the applicant saw Raghu Govind Dangar and his son Prakash i.e. respondent No. 2 inflicting blows of sword upon his uncle Randhirbhai and other persons with wooden plank and as those persons saw the applicant - complainant coming towards the field of his uncle Randhirbhai, all of them ran away." 5. On seeing this, the applicant - complainant was speechless and was not able to decide what to do and what not to do and sat there for few minutes. There he saw his uncle Randhirbhai in an unconscious stage. It is further the case of the prosecution that the complainant saw injuries on the chest and stomach of his uncle and on the right left thigh and was profusely bleeding. It is further the case of the prosecution that as the applicant-complainant did not have mobile phone, he went to the field of his another uncle - Shamjibhai which is nearby and informed him about the incident. It is further the case of the prosecution that the complainant's uncle Shamjibhai came on his motorcycle to the field of his uncle Randhirbhai. However, his uncle did not wake up and as it was found that he was dead, his uncle Shamjibhai informed somebody by his mobile and after about half an hour, one Shivji Mahadeva Baradiya, Shambhu Jayajar Jangila as well as Krishnabhai Kothivad, Shankar Jiva Chavda, Palu Parbat Baradiya, Manji Kanji Danger and other persons residing at Villge Paddhar and other relatives came to the field of his uncle Randhirbhai in different vehicles. It is further the case of the prosecution that Bolero car belonging to his uncle Shamjibhai was also summoned and thereafter, his uncle Randhirbhai was taken in the said Car to G.K. General Hospital, Bhuj along with the complainant and his father and on reaching hospital, his uncle Randhirbhai was declared dead. With these basic allegations, the impugned FIR came to be lodged. 6. With these basic allegations, the impugned FIR came to be lodged. 6. Pursuant to the said complaint, the police started investigation and arrested respondent No. 2 as well as his father and in fact the investigation is also over and charge-sheet is filed in the Court of learned Chief Judicial Magistrate, Bhuj for the alleged offence punishable under Sections 302, 143, 147, 148, 149, 120(B) of the IPC and Section 135 of Gujarat Police Act. Respondent No. 2 preferred an application under Section 439 of the Code and prayed to release him on bail during pendency of the trial. The application was opposed by the State of Gujarat as well as by the applicant - complainant and considering the case of the accused, the learned 3rd Additional Sessions Judge vide order dated 30.1.2016 allowed the said application and released respondent No. 2 on regular bail on certain terms and conditions imposed upon him. Being aggrieved by the said order, the present application is filed. 7. Mr. J.A. Dave, learned advocate for the applicant - original complainant contended that the learned Sessions Judge has wrongly discussed the evidence and further statement of the applicant - original complainant who is the sole eye-witness. It is contended that during the course of investigation, knife has been recovered from Raghu Govind and FSL report shows that blood stains were found on the knife which belongs to the blood group of the deceased. It is further contended that from the conduct of all the accused, it clearly appears that it was an unlawful assembly and the complainant being the eye-witness has lodged the FIR. It is contended that the Court cannot evaluate and cannot presume the evidence which is gathered at this stage and the postmortem notes clearly indicate that about 15 serious injuries were received by the deceased which is possible with weapon like sword and knife and therefore, the discretion exercised by the learned Judge is erroneous. It is contended that the principle of parity which is applied by the learned Judge is totally erroneous. It is contended that assailants were armed with deadly weapons and only because this Court granted bail to Pravin Raghu and Shivji @ Ramesh Govind Dangar who were armed with wooden plank cannot be made basis of grant of bail. It is contended that the principle of parity which is applied by the learned Judge is totally erroneous. It is contended that assailants were armed with deadly weapons and only because this Court granted bail to Pravin Raghu and Shivji @ Ramesh Govind Dangar who were armed with wooden plank cannot be made basis of grant of bail. It is contended that respondent No. 2 and other accused are headstrong persons and there is every possibility that they would not be available for trial and that they would make all attempts to tamper with the evidence. Mr. Dave reiterated that considering the version of the applicant - complainant who is the eyewitness, this is a fit case for exercise of jurisdiction under Section 439(2) of the Code and allow the application as prayed for. Mr. J.A. Dave has relied upon the following judgments:-- "(i) State of Maharashtra v. Anand Chintaman Dighe, AIR 1991 SC 1603 . (ii) Ranjitbhai Hemubhai Gohil v. State of Gujarat & Ors., 2008(5) GLR 4524. (iii) Rajubhai Pithabhai Vala v. State of Gujarat & Ors., 2012 (1) GLR 82 ." 8. Mr. K.P. Rawal, learned Additional Public Prosecutor for the respondent - State has also supported the application. It is contended that respondent No. 2 is one of the main accused and sword has been recovered from respondent No. 2 and knife from another accused-Raghu Govind Dangar and even blood stains are found from the belt of respondent No. 2 with cut marks. It is further submitted that even FSL report shows the same aspect. 9. Per contra, Mr. J.M. Panchal, learned advocate with Ms. Subhadra Patel, learned advocate for respondent No. 2 has opposed the application and has submitted that the learned Judge has rightly considered the facts of the case and the role attributed and the most important factor which has weighed with the learned Judge is that the investigation is over and that there are four different versions given by the applicant who is alleged to be the sole eyewitness. It is pointed out that the FIR is lodged on 29.6.2015, wherein Raghu Govind Dangar and respondent No. 2 are shown to be having sword. In the statement which is given on 29.6.2015, again, the different version is given, wherein the complainant has said that Raghu Govind Dangar was armed with knife and respondent No. 2 with sword. It is pointed out that the FIR is lodged on 29.6.2015, wherein Raghu Govind Dangar and respondent No. 2 are shown to be having sword. In the statement which is given on 29.6.2015, again, the different version is given, wherein the complainant has said that Raghu Govind Dangar was armed with knife and respondent No. 2 with sword. On 1.7.2015, again a different version is given and it is said that something like knife was there with respondent No. 2 and that his uncle was hold by about 7-8 persons. It is submitted that even alleged role of the accused have been changed and thus, different versions are given by the sole eye-witness who is the complainant also. Referring to the FSL report and the charge-sheet papers, it is submitted that though the sword is recovered, no blood stain marks are found. Similarly, though knife is recovered from accused - Raghu Govind Dangar, human blood "O" positive is found which is also the blood group of the other accused also. It is submitted that as such it is a blind murder and no one has seen and because of personal and political rivalry, the whole family including father, son and brothers have been wrongly roped in the present offence. It is contended that different versions have been given only to suit the medical evidence. It is further submitted that the same is further bifurcated by changing stand that the accused gave blow with knife and wooden plank only in order to match with the medical evidence. It is further submitted that there is totally inconsistent story given in different versions by the applicant - complainant only in order to wrongly rope in the whole family with an attempt to fix certain persons. It is further submitted that therefore the discretion which is exercised in favour of the respondent No. 2 by the learned Judge is on the facts of the case and on correct appreciation of the investigation papers. It is submitted that after respondent No. 2 as well as other accused have been enlarged on bail, no untoward incident has taken place and there is no complaint whatsoever by the State about any attempt on the part of respondent No. 2 and other accused to tamper with the evidence. It is submitted that after respondent No. 2 as well as other accused have been enlarged on bail, no untoward incident has taken place and there is no complaint whatsoever by the State about any attempt on the part of respondent No. 2 and other accused to tamper with the evidence. It is further submitted that the accused as well as the applicant stay in the same village and they know each other and therefore, in light of the different versions, the learned Judge has rightly exercised the discretion. It is submitted that parameters for cancellation of bail under Section 439(2) of the Code and grant of bail under Section 439 of the Code are different and distinct and no circumstances have arisen in the instant case for exercise of such powers. The learned advocate for respondent No. 2 has relied upon the following decisions:-- "(i) Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr., (2016) 1 SCC 152 . (ii) Solanki Ravibhai Dipubhai & Ors. v. State of Gujarat & Anr., 1992(1) GLR 631 (iii) Dr. (Mrs.) Nitaben Abhaybhai Mehta v. State of Gujarat, 1992 (2) GLR 1607 (iv) Rameshbhai Batubhai Dhabi v. State of Gujarat, 2011 (3) GLR 1999 " 10. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 11. Considering the submissions made by the learned advocates appearing for the respective parties as well as on perusal of the FIR, police papers and the papers of the charge-sheet which are made available by the learned Additional Public Prosecutor, it is no doubt true that the applicant - original complainant is the sole eye-witness. Charge-sheet papers clearly indicate that the FIR came to be lodged on 29.6.2015, wherein Raghu Govind Dangar and respondent No. 2 were shown to be armed with sword. On very next day i.e. 29.6.2015, the applicant - complainant changed his version and made further statement that the accused - Raghu Govind Dangar was armed with knife. Again, on 1.7.2015, the another version is given, whereby the applicant has stated that Raghu Govind Dangar was armed with weapon "like knife" and even respondent No. 2 was armed with knife and instead of 4 persons in the earlier version, 7 to 8 persons are shown. Again, on 1.7.2015, the another version is given, whereby the applicant has stated that Raghu Govind Dangar was armed with weapon "like knife" and even respondent No. 2 was armed with knife and instead of 4 persons in the earlier version, 7 to 8 persons are shown. The complainant being the sole eye-witness, it appears that there is an improved statement to lay down foundation for the case against the accused. 12. In facts of the case which have already been discussed hereinabove and considering the fact that that sole eye-witness has given different versions at different times and has attributed different weapons, considering the aforesaid position and on perusal of the charge-sheet papers, it clearly bornes out that there is material change of version in the sole eyewitness and the learned Sessions Judge has therefore rightly exercised the discretion in favour of respondent No. 2. It is not the case of the applicant that after the bail was granted to respondent No. 2, there is any breach of condition by respondent No. 2. Considering the prima face case therefore, learned Additional Sessions Judge has rightly relied upon the judgment of this Court in the case of Dr. (Mrs.) Nitaben Abhaybhai Mehta (supra). 13. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Bhagirathsinh Judeja v. State of Gujarat, reported in AIR 1984 SC 372 , wherein the Apex Court has observed thus:-- "6. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be, granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court." 14. It would also be profitable to refer to the case of Dolat Ram & Ors. v. State of Haryana, reported in (1995) 1 SCC 349 , wherein the principles are laid down for exercise of powers under Section 439(2) of the Code and the Apex Court has observed thus:-- "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted." 15. The Apex Court, recently in the case of Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr., reported in (2016) 1 SCC 152 , has reiterated the principles of grant of anticipatory bail and observed that the gravity of charge and exact role of the accused must be properly comprehended. In opinion of this Court, the learned Judge has rightly exercised the discretion and following the ratio laid down by the Apex Court in the case of Bhagirathsinh Judeja (supra) and Dolat Ram (supra), the present application is misconceived. Similarly, in Central Bureau of Investigation, Hyderabad v. Subramani Gopalakrishnan & Anr., (2011) 5 SCC 296 , the Apex Court has observed thus:-- "23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial." 16. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial." 16. In facts and circumstances of the case therefore, it cannot be said that the learned Sessions Judge has erroneously exercised the jurisdiction in favour of respondent No. 2 and it is not a fit case for cancellation of bail as prayed for. This Court is conscious of the fact that as the trial is still to take place, it would not be appropriate for this Court to appreciate the evidence and discuss it any further though it is an admitted position that the deceased has succumbed to the injuries which are serious in nature. The fact is that the complainant - sole eye-witness has changed his version and different role is attributed to respondent No. 2 though it is found that while enlarging respondent No. 2 on bail under Section 439 of the Code, appropriate conditions are imposed by the learned Sessions Judge. Even while dismissing the present application and even while coming to the conclusion that the discretion is properly exercised by the learned Additional Sessions Judge, Bhuj, over and above the conditions which are imposed by the learned Additional Sessions Judge, the following additional condition is imposed upon respondent No. 2:-- "Respondent No. 2 shall not enter the limits of Bhuj Taluka till the trial is over, except for attending the trial and shall furnish fresh residential address to the Investigating Officer." 17. In light of the facts arising in this case, wherein applicant - original complainant being a sole eye-witness has given different versions, in opinion of this Court, the judgments relied upon by Mr. Dave, learned advocate for the applicant would not be applicable. No such circumstance has arisen in the present case. As observed hereinabove, even the applicant and the prosecution have not contended that there is even an attempt made by the respondent No. 2 to misuse the liberty granted by the learned Sessions Judge. 18. Dave, learned advocate for the applicant would not be applicable. No such circumstance has arisen in the present case. As observed hereinabove, even the applicant and the prosecution have not contended that there is even an attempt made by the respondent No. 2 to misuse the liberty granted by the learned Sessions Judge. 18. In the aforesaid facts and circumstances of the case therefore, in opinion of this Court, no interference is called for by this Court in exercise of its powers under Section 439(2) of the Code, except modification of the conditions as above. The application is disposed of accordingly. Rule discharged.