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Gujarat High Court · body

2017 DIGILAW 720 (GUJ)

Akshay Hirabhai Bharvad v. State of Gujarat

2017-04-03

B.N.KARIA

body2017
JUDGMENT : B.N. Karia, J. 1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant viz. Akshay Hirabhai Bharvad for regular bail in connection with an FIR, being C.R. No. I-179 of 2016 registered with Vatva Police Station, Ahmedabad for the offences punishable under Sections 302, 364, 120B, 201, 143, 149 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. 2. Heard learned advocate Mr. Paresh M. Darji appearing on behalf of the applicant and learned APP Mr. KP Raval appearing on behalf of the respondent-State. 3. Learned advocate Mr. Paresh M. Darji appearing on behalf of the applicant has submitted that the applicant is an innocent person and not at all involved in any of the charges levelled against him. That, the investigation is over and there is no recovery and discovery from the present applicant. That, the learned Sessions Court rejected the bail application mainly on the ground that the applicant had earlier filed an application, which was rejected, but the learned Sessions Court ignored the liberty granted by the High Court to prefer regular bail application after filing of the charge-sheet. He has further argued that on the hearsay evidence of one Vipulbhai Rabari, friend of the complainant, the present FIR has been filed. That, there is no direct nexus or connection of the applicant in the so called offence. That, even after the investigation, there is no witness on the record, which suggests that because of the blow or attack by the applicant, the deceased died. Thus, it can be said that whole incident is on suspicion. Not only that, even from the entire FIR or charge-sheet papers, no direct evidence has come forth on the record as to how alleged offence took place. That, the version of the complainant having identified the accused in the alleged offence with other accused is not supported by any independent witness, and therefore, identification is baseless and even the same may not be the sole ground for denial of bail to the applicant. That, the applicant has been falsely roped into the alleged offence only as a scapegoat and there is nothing whatsoever connecting the applicant with the alleged offence. That, the applicant is only the bread winner of his family. That, the applicant has been falsely roped into the alleged offence only as a scapegoat and there is nothing whatsoever connecting the applicant with the alleged offence. That, the applicant is only the bread winner of his family. Lastly, he has submitted that considering the nature of allegations, role attributed to the applicant, the applicant may be enlarged on regular bail by imposing suitable conditions. 4. Per contra, it is vehemently argued by learned APP Mr. KP Raval appearing on behalf of the respondent-State that the applicant is prima facie involved in the serious offence. That, during the investigation, in T.I. Parade, he was identified. That, recovery of stick from the present applicant was made, by preparing a panchnama. That, a motor vehicle "Fortune car" driven by the present applicant was also recovered. That, during the investigation, statement of Ravjibhai Mohanbhai Baraiya and Akshaybhai alias Gajni son of Bharatbhai Prajapati were recorded by the investigation officer and they also have supported prosecution case saying that the present applicant is involved in kidnapping of deceased Kantibhai Kadia in a motor vehicle and thereafter, he was murdered. His dead body was thrown out by all the accused. That, multiple injuries were found on the dead body, while performing the post mortem of the deceased. Clothes of the deceased were recovered by the investigating agency. That, due to shock and hemorrhage due to multiple injuries, cause of death was opined in post mortem note. The involvement of the present applicant is found by the police from the cellphone of the applicant in a area, where the offence was committed. The entire case is based on circumstantial evidence. That, the charge-sheet is filed by the investigating agency and the previous application was withdrawn by the applicant and there being no new circumstances available with the applicant to accept his prayer of granting bail as requested by him. That, presence of the applicant would not be secured, if he is granted bail by the Court. And ultimately, it was requested by learned APP to dismiss the present application. 5. That, presence of the applicant would not be secured, if he is granted bail by the Court. And ultimately, it was requested by learned APP to dismiss the present application. 5. Having considered the facts of the case, submissions made by learned advocates appearing on behalf of the respective parties, the contentions of the complaint, statements of the witnesses and evidence collected by the investigating officer during the course of investigation, it appears that the alleged offence was committed from 16.08.2016 to 17.08.2016 between 12.00 to 08.36 hours and was brought to the notice of the police on 17.08.2016 at 13.30 hours. It appears that present applicant, before filing of the charge-sheet by the investigating agency, had approached this Court requesting to enlarge him on bail by preferring Criminal Misc. Application (For regular bail) No. 29058 of 2016. On 28th October, 2016, this application preferred by the applicant was withdrawn with a liberty to file a fresh application after filing of the charge sheet. It appears that after completion of investigation, police has filed a charge sheet against the present applicant and other co-accused. As argued by learned APP Mr. KP Raval that the entire case is based on circumstantial evidence. It appears from the statement of witnesses recorded by the investigating officer that none of the witnesses were present at the time of committal of offence. It is true that 32 injuries were found on the body of the deceased; including on vital part of his body and the cause of death, as opined by the doctor, is due to shock and hemorrhage due to multiple injuries. 6. The prosecution has recorded statements of two witnesses viz. Akshaybhai alias Gajni son of Bharatbhai Prajapati and Ravjibhai Mohanbhai Baraiya. It appears from the statement of Akshaybhai alias Gajni son of Bharatbhai Prajapati that the present applicant had contacted this witness and inquired about the deceased namely Kantibhai, this witness booked the present applicant at a place where the deceased was working in the motor vehicle. It was also explained by the present applicant to this witness that he was searching the deceased. As stated by this witness, he was informed by the applicant to accompany him, because a girl of his family was kidnapped by a boy of the family of the deceased, and therefore, he was searching the deceased Kantibhai Kadia. It was also explained by the present applicant to this witness that he was searching the deceased. As stated by this witness, he was informed by the applicant to accompany him, because a girl of his family was kidnapped by a boy of the family of the deceased, and therefore, he was searching the deceased Kantibhai Kadia. On the basis of the statement given by the present applicant to this witness, he was taken present applicant at the place of the work where the deceased was working. The other members sitting nearby to this witness in a motor vehicle are also identified by this witness. As per the statement of this witness, other co-accused viz. Bharatbhai, Danabhai and Hamirbhai came out from the motor vehicle and caught hold the deceased and was forced him to sit in the motor vehicle driven by the present applicant. The registration number of the motor vehicle "Fortune car" is GJ-1-KS-1155. There is nothing with the investigating officer to show that the present applicant was the owner of the motor vehicle. It is the belief of this witness that after kidnapping the deceased Kantibhai in the motor vehicle, as stated above, he must have been murdered and his dead body must have been thrown out in the field. At the scene of offence, no weapon allegedly used by the present applicant was found/recovered. 7. The other prosecution witness Ravjibhai Mohanbhai Baraiya, whose statement is also recorded by the police on 24.08.2016 has stated that nearby to his residence, he found one motor vehicle when he reached to his residence, 3-4 boys were standing in osari and informed this witness that he was the son of Hirabhai Bharwad viz. Akshay. As Hirabhai Bharwad has purchased the land nearby, he was known to this witness. Thereafter, this witness left for his field and all the persons left the residence in a motor vehicle. Thereafter, from the police officer, this witness came to know that Kadia was brought from Ahmedabad by kidnapping him and he was murdered at his residence. His dead body was thrown away in a field of Vatva area at Ahmedabad. Shri Akshay Hirabhai Bharwad and other persons came to his residence in the noon, but this witness is not known to them and even the deceased. His dead body was thrown away in a field of Vatva area at Ahmedabad. Shri Akshay Hirabhai Bharwad and other persons came to his residence in the noon, but this witness is not known to them and even the deceased. In the statement, he has not stated about seeing anybody assaulting the deceased, or his having heard any shout, as he was far away in his field. He has even no idea of the motor vehicle or the registration number. From the statement of this witness, it appears that he has no knowledge of the offence or the persons involved in the offence. Whatever statement is given by this witness is based on the police officer informing him of the incident. None of the witnesses have seen the present applicant assaulting the deceased. As per the prosecution case, one stick was recovered from the present applicant and he was identified in Test Identification Parade also. Prima facie, available evidence does not connect the present applicant in the alleged offence. The statement of so-called phone call made from the area of near the place of offence, would not be sufficient evidence to connect the present applicant in the alleged offence. There is nothing on record that from the cellphone of the present applicant, any call was made by him from the area of the place of offence, or nearby the place of the offence on the day of incident. 8. The Courts have to adopt liberal approach, while considering the bail application of the accused persons. This Court has considered it to be a paramount consideration. Whether there are any chances of the accused persons fleeing from justice or reasonable apprehension that the accused persons will tamper with the evidence or trial, if he would be released on bail. From the record and the contents, it shows that there is no apprehension that the presence of the applicant would not be secured at the time of trial, or that he would flee away from justice, or will tamper with evidence of the prosecution witnesses, if he is released on bail. 9. Under these circumstances, this is a fit case to exercise the discretion vested under Section 439 CrPC by releasing the present applicant on bail for the offences punishable under Sections 302, 364, 120B, 201, 143, 149 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. 9. Under these circumstances, this is a fit case to exercise the discretion vested under Section 439 CrPC by releasing the present applicant on bail for the offences punishable under Sections 302, 364, 120B, 201, 143, 149 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. Hence, the following order: 10. The present application is allowed. Applicant is ordered to be released on regular bail in connection with an FIR, being C.R. No. I-179 of 2016 registered with Vatva Police Station, Ahmedabad on his executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant 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) surrender passport, if any, to the lower court within a week; (d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; (e) mark presence before the concerned Police Station on every Monday of each English calendar month for a period of three months and thereafter, alternate Monday for a period of six months, between 11:00 a.m. and 2:00 p.m. (f) furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court." 11. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned 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. 12. Rule is made absolute to the aforestated extent. 13. Direct service permitted, as requested by learned advocate by the applicant. Application Allowed.