Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 833 (GUJ)

Ramesh v. State of Gujarat

2019-10-01

R.P.DHOLARIA

body2019
ORDER : R.P. DHOLARIA, J. 1. This is a successive bail application filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with an offence being C.R. No. I-185/2016 registered with Ramol Police Station, Ahmedabad for the offence punishable under sections 302, 323, 120(B), 201 and 114 of the Indian Penal Code and under section 135(1) of the Gujarat Police Act. 2. The brief facts of the case are that on 17.11.2016 at Rabari Colony, Amraiwadi, the applicant-accused, on account of some differences and disputes with the complainant in land and construction business, gave a blow to the complainant with a sharp weapon and committed the offence as enumerated in the FIR as well as in charge-sheet. The story of the prosecution is that on 17.11.2016, it is alleged that when the deceased was leaving the venue of a Garba function (as part of his nephew's wedding celebrations) towards the road facing/opposite Rabari Colony Gate No. 6 at 1:45 a.m. on 17.11.2016, the applicant herein who was in possession of "Dhariya", struck the deceased with the same. Therefore, present complaint came to be filed. 3. Previously, upon filing of charge-sheet, present applicant moved bail application before the learned Sessions Court, which came to be rejected on merits and thereafter, he preferred bail application before this Court being Criminal Misc. Application No. 9755 of 2018. After consideration of such bail application, learned advocate choose to withdraw the said application wherein this Court passed following order on 04.10.2018: "Learned advocate for the applicant seeks permission to withdraw the present application. Permission, as sought for, is granted. The present application stands disposed of as withdrawn. However, the investigating agency shall make all endeavour to apprehend the absconded accused and to put them into trial before the learned trial Court at the earliest. Rule is discharged." 4. Thereafter, the learned trial Court has framed charge and commenced recording of evidence of witnesses and for about 10 witnesses have already been examined and it is stated that for about 15 witnesses including 5 eye-witnesses remain to be examined. 5. Mr. Rule is discharged." 4. Thereafter, the learned trial Court has framed charge and commenced recording of evidence of witnesses and for about 10 witnesses have already been examined and it is stated that for about 15 witnesses including 5 eye-witnesses remain to be examined. 5. Mr. Yatin Oza, learned Senior Counsel has argued at length and read over the F.I.R. and the evidence of 4 eyewitnesses as well as other papers of charge-sheet and argued that when the previous bail application was moved, at that time, the applicant was not having F.S.L. Report and even the oral evidence of Medical Officer was also recorded subsequently which is in his favour and which is in the nature of exonerating him and further argued that since there was a friendly relationship between the applicant and the victim and the applicant happened to attend pre-marriage garba ceremony and he was found in hugging position in videography as well as photography with the deceased-victim and soon thereafter, the incident in question occurred wherein the other witnesses projected by the prosecution claiming to be eyewitnesses to the incident as such, but, while considering the subsequent report submitted by Mr. Dave, Police Inspector in pursuance of order passed by this Court to take into consideration the representation made by the accused and in that report, the call data records do not indicate the mobile location at the place of scene of occurrence and it was found to be at a different distant place so far as all the 4 eye-witnesses are concerned and therefore, their presence in viewing the incident has become doubtful and therefore, their credibility and reliability could not be helpful for proving the case against the present applicant-accused and on that count also, the applicant has become entitled to be enlarged on bail and no prima-facie case is made out against him. 6. Mr. 6. Mr. Oza, learned Senior Counsel, further argued that after the previous bail application, as the trial began and in the evidence of Medical Officer who carried out autopsy over the dead body of the deceased has opined as regards usage of weapon namely "Dhariya" and its effect thereon and in that view of the matter, he places reliance upon his deposition and admission as regards to the nature of sharp-edge cutting weapon and he has tried to convince this Court that the usage of "Dhariya" is not being established for causing injury to the deceased. Further, Mr. Oza, learned Senior Counsel argued that the F.S.L. Report clearly absolves so far as blood stains found over the weapon alleged to have been used in commission of the crime in question and that the blood group could not be determined. On that count also, the usage of weapon could not be established against the applicant. Mr. Oza, learned Senior Counsel, while arguing his case, strongly urged that there is no prima-facie case against the present applicant and has placed reliance on the celebrated decision of Hon'ble Apex Court in the case of "Sanjay Chandra vs. CBI" reported in 2012 (1) G.L.H. 93 as well as decision of the Hon'ble Apex Court in case of Dataram Singh vs. State of Uttar Pradesh & Anr. reported in (2018) 3 SCC 22 . Learned Senior Counsel has also read out certain paragraphs of the aforesaid celebrated decisions. 7. On the other hand, Ms. Moxa Thakkar, learned APP and Mr. Ashish Dagli, learned advocate for the original complainant strongly opposed for grant of bail for variety of reasons and argued that previously, when the bail application of the present applicant was heard, all the points raised by learned Senior Counsel was considered and after considering previous bail application, no fresh cause is shown for consideration of this successive bail application. As regards merits of the case and defence put up as regards call data records, learned APP pointed out that one of the co-accused preferred application for quashment of F.I.R. in which this Court while passing a detailed order criticized the role played by the Investigating Officer and also ordered for conducting departmental inquiry. As regards merits of the case and defence put up as regards call data records, learned APP pointed out that one of the co-accused preferred application for quashment of F.I.R. in which this Court while passing a detailed order criticized the role played by the Investigating Officer and also ordered for conducting departmental inquiry. As regards subsequent development after commencement of trial and adducing evidence of some of the witnesses, especially, learned doctor who performed the autopsy and filing of serology report is also not helpful to the present applicant as it does not absolve the applicant. On the contrary, according to their submission, the doctor has clearly opined that the injury caused over the head of the deceased could be possible by the weapon attributed to the present applicant. Learned APP further pointed out that the trial is at crucial stage where one of the eye-witnesses has been put into witness-box and at this stage, the request of the applicant for enlarging him on bail may not be considered considering his conduct in the past that when he was granted temporary bail, he remained absconding for 239 days and he is involved in about 12 other such sort of offences attacking human body as well as property related cases and as such he is having strong criminal history. 8. This Court has heard Mr. Yatin Oza, learned Senior Counsel assisted by Ms. Nirali Y. Oza, learned advocate for the applicant, Ms. Moxa Thakkar, learned APP for the respondent-State and Mr. Ashish Dagli, learned advocate for the original complainant. 9. This Court has gone through the papers of charge-sheet as well as in light of the rival submissions, it appears that the present applicant-accused along with other 3 persons are alleged to be indulged in commission of cold blooded murder of one of his confident business partners after attending pre-marriage garba ceremony organized by common friend of the present applicant-accused as well as deceased. The genesis of offence is also emerging out from the complaint that there was business rivalry as regards to business of construction as well as land related issues due to which the applicant along with other accused are alleged to have done away the deceased-victim. The genesis of offence is also emerging out from the complaint that there was business rivalry as regards to business of construction as well as land related issues due to which the applicant along with other accused are alleged to have done away the deceased-victim. The papers of charge-sheet clearly indicates that along with the complainant there are other 3 accused and in all 4 eye witnesses to the incident who have clearly stated in their statements that the present applicant inflicted dhariya blow over the head of the deceased. The autopsy report clearly indicates that the cause of death of the deceased is due to head injury and the autopsy report clearly indicates multiple serious injuries over the head of the deceased. Therefore, prima-facie, even considering the rival submissions as regards to assault, usage of weapon "Dhariya" and the defence put up by learned Senior Counsel, at this stage, it would be very hazardous to record findings in view of report submitted, in pursuance of order passed by this Court, by one of the Investigating Officer indicating that the mobile location was not found at the place of incident so far as complainant and other 3 witnesses who claim to be eye-witnesses to the incident. Since recording of evidence of eye-witnesses has commenced, it would be the function of the learned trial court to test the veracity and credibility of eye-witnesses rather than to consider the same at the stage of bail application and reliability of such eye-witnesses who had consistently stated before the police that the present applicant was armed with "Dhariya" and assaulted the deceased and other evidence and papers also indicating that the deceased succumbed to the injuries due to head injuries. In that view of the matter, as argued by learned Senior Counsel, the detailed documentation and detailed examination and recoding finding as to whether the aforesaid 4 eye-witnesses are reliable and credible or not could not be examined at this stage. The Hon'ble Supreme Court, in para-12, in the case of "Satish Jaggi vs. State of Chhattisgarh & Ors. reported in 2007 (11) SCC 195 , has held as under: "12. … ...... At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. The Hon'ble Supreme Court, in para-12, in the case of "Satish Jaggi vs. State of Chhattisgarh & Ors. reported in 2007 (11) SCC 195 , has held as under: "12. … ...... At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial." 10. On overall reading of the decisions, relied upon by Mr. Oza, learned Senior Counsel for the applicant, following factors, while considering the bail application, are required to be examined: "While considering the application for bail, what is required to be looked is (i) whether there is any prima facie case or reasonable ground to believe that accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing if released on bail; (v) likelihood of the offence being repeated; (vi) character, behaviour, means, position and standing of the accused; (vii) reasonable apprehension of the witnesses being tempered with; (viii) danger of course, of justice being thwarted by grant of bail; State of Uttar Pradesh through C.B.I. v. Madhumani Tripathi, 2005 Cr LJ 4149 (SC) : (2005) 8 SCC 21 : AIR 2005 SC 3490 ." 11. Even otherwise also, it would not be in the interest of the present applicant to evaluate at this stage before testing the testimony of eye-witnesses by the learned trial court as regards to the credibility and reliability of eye-witnesses. 12. This Court has also considered the autopsy report submitted by learned Panel doctors who carried out the autopsy over the dead body of the deceased as well as deposition of P.W. 6-Dr. Manish C. Sutariya. On overall reading of his evidence on record, it would not be possible to record finding that the injury found over the head of the deceased could not be possible by weapon "Dhariya". The report of F.S.L. clearly indicates that "Dhariya" was found with blood stains, but its blood group could not be determined due to unascertained antigenicity and that itself does not lead to any final conclusion as regards to non-involvement of present applicant. 13. The report of F.S.L. clearly indicates that "Dhariya" was found with blood stains, but its blood group could not be determined due to unascertained antigenicity and that itself does not lead to any final conclusion as regards to non-involvement of present applicant. 13. This Court while considering above mentioned wide parameters for considering bail application, examined all aspects of consideration and considering the genesis of offence as well as the fact that the applicant is having not less than 10 such antecedents and prima-facie his involvement in the crime in question coupled with the fact that while he was enlarged on temporary bail by this Court, he absconded for about 239 days and abscondence of other co-accused protracted the trial and now the trial has already commenced and examination of one of the eye-witnesses is going on, at this crucial stage, it would definitely prejudice the cause of justice considering the totality of the facts and circumstances of the case since trial has commenced and detail and meticulous examination of merits of the case is to be examined in the near future. Therefore, it would be suffice to say that in overall consideration, no case is made out to use judicial discretion in favour of the present applicant to enlarge him on bail. Therefore, present application stands dismissed. 14. The aforesaid observations are made only for the purpose of deciding present bail application. The learned trial Court shall without being influenced by any sort of observations, independently examine the evidence on its own merits while recording conclusion and findings thereon without being influenced by the observations made by this Court. Rule is discharged.