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2019 DIGILAW 1065 (GUJ)

Kumbhabhai v. State of Gujarat

2019-10-25

B.N.KARIA

body2019
ORDER : B.N. Karia, J. 1. An affidavit filed by the respondent No. 2 is taken on record. 2. The appellant has filed Criminal Misc. Application No. 313 of 2019 before the court of learned Additional District Judge, Tharad, Dist. Banaskantha u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered vide I-C.R. No. 17 of 2019 with Mavsari Police Station, Dist. Banaskantha for the offence punishable u/s. 307, 323, 504, 506(2), 114 of the Indian Penal Code and u/s. 135 of G.P. Act as well as u/s. 3(1) (R), 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein, the learned Additional District Judge, Banaskantha, Tharad rejected the said application on 09.10.2019. 3. Feeling aggrieved by the said order, the appellant preferred said appeal u/s. 14A of the Atrocities Act. 4. Heard Mr. Kishore Prajapati, learned advocate for the appellant, Mr. Nilesh Makwana, learned advocate for the respondent No. 2 and Mr. J.K. Shah, learned APP for the respondent no. 1-State. 5. Learned advocate for the appellant has submitted that the present appellant is an innocent person and has not committed any offence as alleged in the FIR. That, the allegations made against the appellant is vague and general in nature and no specific role is attributed by the appellant and therefore, the Court may release the appellant on bail. That, the appellant was arraigned as an accused in the FIR only on account of earlier dispute of his sister. That, the appellant is brother of victim and complainant and he himself is trying to settle the dispute with in-laws of sister and in heat of moment suddenly the incident is occurred. That, the settlement has arrived at between the parties amicably and therefore, the applicant may be enlarged on bail. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by the learned Additional District Judge, Banaskantha at Tharad. 6. Learned advocate for the respondent No. 2 has submitted that dispute is settled between the parties amicably and complainant has no grievance if the applicant may be enlarged on bail. 7. 6. Learned advocate for the respondent No. 2 has submitted that dispute is settled between the parties amicably and complainant has no grievance if the applicant may be enlarged on bail. 7. Learned APP appearing for the respondent-State has strongly objected the arguments advanced by learned advocate for the appellant and submitted that the involvement of the present appellant was clearly established by recording the evidence during the course of investigation by the Investigating Agency. He has invited attention of this Court to the injury certificate of the victim Ramilaben. He further submits that grievous injuries caused to her by the present appellant by using deadly weapon. That, the serious injuries were caused to the injured witness Ramilaben. However, the matter is settled between the parties amicably and the Court may pass necessary order. 8. Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State, it appears from the complaint as well as police papers, injuries were caused by the present appellant with a weapon to victim-Ramilaben and injuries caused to her on her head portion. Injury Certificate is supported the case of prosecution. as per medical certificate, certain injuries on other parts of the body were caused upon victim-Ramilaben. Involvement of the present appellant cannot be denied by the Court. Respondent No. 2 has filed her affidavit stating that the matter is settled between the parties amicably and she has no grievance if the applicant-accused would be enlarged on bail. Injuries were caused to the victim-Ramilaben and she was discharged from hospital on 23rd September, 2019. The appellant is in judicial custody since September, 2019. Thus, considering the facts of the case, this Court deems it fit to exercise the discretionary power in favour of the present appellant. 9. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 9.10.2019 passed by the learned Additional District Judge, Banaskantha, Tharad in Criminal Misc. Application No. 313 of 2019 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 9. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 9.10.2019 passed by the learned Additional District Judge, Banaskantha, Tharad in Criminal Misc. Application No. 313 of 2019 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant 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 India without prior permission of the concerned Trial Court; [e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.; [f] furnish the present 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; 10. The authorities will release the appellant 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 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. 11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 12. Direct service is permitted. Notice is discharged.