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2019 DIGILAW 269 (SC)

Kishan Khubchand Korani v. State Of Gujarat

2019-01-22

A.M.KHANWILKAR, AJAY RASTOGI

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ORDER : CRLMP NO. 104563 OF 2018 in CRIMINAL APPEAL NOS. 975-976 OF 2018 Appeals Admitted. To be heard alongwith Crl. A. No. 859 of 2018 . 2. This bail application is filed by accused No.3 namely Umeshbhai Surabhai Bharwad. It is not in dispute that after a full fledged trial, the applicant was acquitted by the trial court on the finding that he has been named by only two police officials. His name was not mentioned in the FIR. The police officials named him after a gap of four days from the date of incident claiming to have seen the applicant in a group of around 15,000 persons gathered at the scene of offence. No identification parade was conducted in respect of this applicant. The High Court has reversed the acquittal only on the basis of evidence of two police witnesses. Prima facie, we find that the approach of the High court is debatable. 3. In addition, we find that the applicant was on bail during the trial and has already undergone sentence of around 91/2 months and has been convicted only for offence punishable maximum with ten years under Section 436 of the Indian Penal Code, 1860 (IPC). Further, there is nothing on record to indicate that the applicant had jumped the conditions of bail. 4. It is also seen from the record that the applicant is undergoing HIV treatment. 5. Taking overall view of the matter, application for bail is allowed. Applicant is ordered to be released on bail during the pendency of the appeal on such terms and conditions as may be imposed by the trial court. 6. As a squeal to the above, I.A. Nos. 174211 of 2018 and 2670 of 2019 - applications for permission to bring on record subsequent events and for additional documents are also allowed. I.A. NO. 7679 OF 2019 IN CRIMINAL APPEAL NO. 1573 OF 2018 7. Appeal Admitted. 8. This bail application is filed by accused No.21, namely Prakashbhai Sureshbhai Rathod (Chhara). He prays for grant of interim bail on the ground that his daughter is getting married on 10th February, 2019. An advance copy of this application was served on the standing counsel for the State of Gujarat, who has taken instructions and submits that the factual position stated in the application has been found to be correct by the local police. 9. An advance copy of this application was served on the standing counsel for the State of Gujarat, who has taken instructions and submits that the factual position stated in the application has been found to be correct by the local police. 9. It is also not in dispute that the applicant was granted bail during the trial. There is nothing on record to show that he had misused or jumped any bail condition at that stage. 10. Taking overall view of the matter, we accede to the request of the applicant and grant him interim bail for the period between 28th January, 2019 to 15th February, 2019 on such terms and conditions as may be imposed by the trial court. The applicant must surrender on or before 15th February, 2019. 11. We make it clear that the applicant shall not be permitted to claim equity on the basis of this indulgence, while considering his regular bail application. 12. The application for bail stands disposed of. Crl. Appeal No. 1214-1215 of 2018 13. Appeals admitted. 14. Heard Mr. S.B. Upadhayay, Senior Advocate and Mr. Tushar Mehta, Solicitor General. 15. This bail application is filed by accused No. 24 - Rajkumar @ Raju. The High Court has reversed the acquittal order passed by the Trial Court on the finding that the witnesses have established the presence of the applicant at the scene of offence. The High Court further observed that even in absence of any specific role attributed to the applicant his presence being established, the charge of being a member of the unlawful assembly must hold good. Prima facie, we find this approach to be doubtful, especially when the witnesses relied upon by the prosecution are police officials and no Identification Parade of this applicant was conducted during the investigation by the Police. Identifying the applicant in court by police officials (witnesses) cannot take the matter any further, unless they had known him personally in the past. Moreover, the presence of applicant is stated to be in the group of around fifteen thousand persons gathered at the scene of offence. 16. Accordingly, we are inclined to grant bail to this applicant. The application is allowed. The applicant is ordered to be released on bail to the satisfaction of the Trial Court and on such terms and conditions as may be imposed by the Trial Court. Crl. 16. Accordingly, we are inclined to grant bail to this applicant. The application is allowed. The applicant is ordered to be released on bail to the satisfaction of the Trial Court and on such terms and conditions as may be imposed by the Trial Court. Crl. Appeal No. 1275-1276 of 2018 17. Appeals admitted. 18. Heard Mr. U.R. Lalit, Mr. Purushendra Kaurav, Senior Advocates and Mr. Tushar Mehta, Solicitor General. 19. This bail application is filed by accused No. 19 - Padmendrasinh Jaswantsinh Rajput. The High Court has reversed the acquittal order passed by the Trial Court on the finding that the witnesses have established the presence of the applicant at the scene of offence. The High Court further observed that even in absence of any specific role attributed to the applicant his presence being established, the charge of being a member of the unlawful assembly must hold good. Prima facie, we find this approach to be doubtful, especially when the witnesses relied upon by the prosecution are police officials and no Identification Parade of this applicant was conducted during the investigation by the Police. Identifying the applicant in court by police officials (witnesses) cannot take the matter any further, unless they had known him personally in the past. Moreover, the presence of applicant is stated to be in the group of around fifteen thousand persons gathered at the scene of offence. 20. Accordingly, we are inclined to grant bail to this applicant. The application is allowed. The applicant is ordered to be released on bail to the satisfaction of the Trial Court and on such terms and conditions as may be imposed by the Trial Court. Crl. Appeal No. 1573 of 2018 21. Appeal admitted. 22. Since the applicant has already been granted interim bail till 15.02.2019, list the matter on 20.02.2019 for consideration of prayer for bail. SLP (Crl.) No. 8726 of 2018 23. Leave granted. 24. Heard counsel for the parties. 25. Admittedly, the applicant namely, Harshad @ Mungda Jila Govind Chhara Parmar (accused No.39) has been convicted for offence punishable with 10 years maximum sentence period and he has already undergone more than 5 years of actual imprisonment coupled with the fact that the hearing of the appeal is not likely to take place in the immediate near future. 26. 25. Admittedly, the applicant namely, Harshad @ Mungda Jila Govind Chhara Parmar (accused No.39) has been convicted for offence punishable with 10 years maximum sentence period and he has already undergone more than 5 years of actual imprisonment coupled with the fact that the hearing of the appeal is not likely to take place in the immediate near future. 26. Accordingly, applicant is ordered to be released on bail to the satisfaction of the Trial Court and on such terms and conditions as may be imposed by the Trial Court. SLP (Crl.) No. 8835 of 2018 27. Leave granted. 28. List the matter on 31.01.2019 for consideration of prayer for bail. 29. In the meantime, learned counsel for the State to take instructions on the factual averment made in the application about health condition of the applicant.