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2017 DIGILAW 1185 (GUJ)

Ramesh Motibhai Damor v. State of Gujarat

2017-07-03

G.R.UDHWANI

body2017
ORDER : G.R. UDHWANI, J. 1. Heard learned advocate, for the applicant and learned APP, for the respondent-State. 2. This application is filed under Section 439 of the Code of Criminal Procedure, 1973, for bail in connection with the I-CR No. 9 of 2017 registered with Bayad Police Station for the offence punishable under Sections 302 and 201 of the Indian Penal Code. 3. Having considered the rival contentions, it appears that the case against the applicant is predominantly based upon the circumstance of deceased having been last seen with the applicant herein. In the statement of Kantibhai dated 8.2.2017 he claims to have seen the deceased with the accused, it is his case that the deceased had entered into the room of the accused and thereafter he was not found, whereas in his earlier statement dated 6.2.2017 he has stated that the deceased was sleeping on the cot outside the room of Keshabhai Joytabhai Patel, and that after sometime he was not found in the cot, and then upon being asked as to where the deceased who was sleeping on the cot had gone, an evasive reply was given to him. In the statement dated 6.2.2017 he has further stated that thereafter the applicant prepared the tea which was consumed by both of them and that then both of them went for harvesting the crop, Ramesh-the accused returned earlier, he then did certain work under the instructions of Ramesh. He has further stated that after he returned, he again consumed tea with Ramesh - accused herein when he told him that Kesabhai Raval had been done away with and subsequently when wife and son of the deceased came in search of the deceased, he informed them that at about 10:30 in the morning he had seen him on a cot outside the room of Keshabhai Joytabhai Patel. Thus in the subsequent statement the witness has given altogether a different version as if he had seen the deceased last with the accused. Furthermore, prima facie, it is not possible to reconcile two versions at this stage. It thus prima facie appears that there is a serious flaw in the prosecution story of the deceased being last seen with the applicant. The applicant is therefore entitled to be enlarged on bail. 4. Furthermore, prima facie, it is not possible to reconcile two versions at this stage. It thus prima facie appears that there is a serious flaw in the prosecution story of the deceased being last seen with the applicant. The applicant is therefore entitled to be enlarged on bail. 4. Hence, the application is allowed and applicant is ordered to be released on bail in connection with I-CR No. 9 of 2017 registered with Bayad Police Station on executing a bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c) not leave the territory of India without prior permission of the Sessions Judge concerned; (d) appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly. (e) furnish the present address of residence along with the proof to the I.O concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned; 5. The competent authority will release the applicant only if he is not required in connection with any other offence for the time being. 6. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter. 7. Bail bond to be executed before the lower court having jurisdiction to try the case. 8. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. 9. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. 10. Rule made absolute to the aforesaid extent. Direct service is permitted.