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2019 DIGILAW 1056 (GUJ)

Rajmahendrasinh v. State of Gujarat

2019-10-24

ALPESH Y.KOGJE

body2019
ORDER : 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with I-CR No. 30 of 2018 registered with Morbi Taluka Police Station for the offence under Sections 302, 307, 143, 147, 148 and 34 of the Indian Penal Code and Sections 25(1) and 27)(2) of the Arms Act. 2. Learned Senior Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. It is submitted that the trial has not commenced and there are more than 62 witnesses. The applicant is in jail for more than one and half years, whereas co-accused identically situated are already released on regular bail. The SLP filed before the Apex Court challenging the order of bail of co-accused also stands dismissed. 2.1 It is submitted that so called eyewitnesses are not the eyewitnesses at all as their consistent version is that the applicant fired from closed range by holding deceased by neck from back and fired, whereas the circumstances based on scientific evidence indicate entry wound on chest and exit wound on back. 2.2 Learned Advocate also pointed out several discrepancies in investigation case papers that the firearm weapon discovered at the behest of the applicant was not capable of firing as is reflected in the FSL report. It is submitted that the ballistic report also does not confirm theory of the prosecution. 3. Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the applicant is clearly narrated by eyewitnesses and that too injured eyewitnesses. The postmortem note indicates one single shot and that is attributable to the applicant. Attention is drawn to the "Rawangi Nondh" to indicate that the firearm was in working condition when the discovery panchnama was drawn. It is submitted that parity cannot be drawn due to role attributed to the applicant and other co-accused. 4. Learned Senior Advocate Mr. K.B. Anandjiwala for the complainant, referring to the affidavit, submitted that the role of the applicant is clear from the statements of injured eyewitnesses and their version cannot be doubted. It is submitted that parity cannot be drawn due to role attributed to the applicant and other co-accused. 4. Learned Senior Advocate Mr. K.B. Anandjiwala for the complainant, referring to the affidavit, submitted that the role of the applicant is clear from the statements of injured eyewitnesses and their version cannot be doubted. 4.1 It is vehemently submitted that just because of entry wound and exit wound not matching, the version of these witnesses cannot create doubt and absolve the applicant. 4.2 Learned Senior Advocate has strongly doubted the investigation and submitted that the firearm discovered at the behest of the applicant was in working condition as is observed in discovery panchnama, but when sent to FSL, it was reported to be in non-working condition to suggest that firing pin was damaged after the discovery panchnama. Therefore, an offence under Section 201 is also committed. 4.3 Learned Senior Advocate relied upon the judgment of the Apex Court in case of Gobarbhai Naranbhai Singala vs. State of Gujarat and Others, 2008 Cr. L.J. 1618, more particularly para-24 to support his contention that version of eyewitnesses about a firing incident cannot be discarded. 5. In rejoinder, learned Senior Advocate for the applicant submitted that the applicant cannot be held responsible for investigation as he was forthwith arrested and has been in judicial custody since long. The applicant is being targeted for extraneous reasons. 6. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order. 7. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers. Though elaborate submissions were made from both the sides on the basis of evidence available on record, however, detailed scrutiny of the evidence may not be necessary at this stage. Following aspects are considered:- (i) The FIR is registered on 19.03.2018 for the offence which is alleged to have taken place on 19.03.2018. (ii) The applicant is in jail since 22.03.2018. (iii) The co-accused with identical roles have been enlarged on regular bail. It is pertinent to point out that in all, six accused have been charge sheeted and five firearms are discovered under panchnama. It is the case of prosecution that there was indiscriminate firing and from scene of offence, several empty cartridges have been found of various firearms. (iii) The co-accused with identical roles have been enlarged on regular bail. It is pertinent to point out that in all, six accused have been charge sheeted and five firearms are discovered under panchnama. It is the case of prosecution that there was indiscriminate firing and from scene of offence, several empty cartridges have been found of various firearms. (iv) The version of eyewitnesses of firing from point blank range on the lower back of the deceased does not get corroboration from the scientific evidence as the entry would and exit wound without doubt is from front chest side to back down side respectively. Moreover, absence of blackening and tattooing around entry wound rules out firing at point blank range. (v) Considering the manner and the reason behind which the incident took place where a small fight regarding removing of clay in the farm land resulted into this incident. (vi) The applicant at the relevant time, a Sarpanch of the village and has no criminal antecedents. (vii) Applying the principle of parity where all other accused also armed with firearms have been enlarged by Coordinate Bench as under. (viii) Learned APP under instructions of IO is unable to bring on record any special circumstances against the applicant. 8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 9. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. 10. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with I-CR No. 30 of 2018 registered with Morbi Taluka Police Station on executing a personal 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. 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 & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police. (c) surrender passport, if any, to the Trial Court within a week. (d) not leave the State of Gujarat without prior permission of the Trial Court concerned. (e) not to enter Morbi District. (f) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m. (g) furnish the present address of his 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 Trial 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. 12. Bail bond to be executed before the 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. 13. 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. 14. Rule is made absolute to the aforesaid extent. 15. Direct service is permitted.