ORDER : 1. The present successive application is filed under Section 439 of the Code of Criminal Procedure in connection with an FIR being C.R.No.I – 165/2019 registered with Kadi Police Station, District: Mehsana for the offences punishable under Sections 302, 307, 364, 365, 342, 120(B), 34 etc. of the Indian Penal Code and Section 135 of the Gujarat Police Act. 2. Heard Mr.Yatin Oza, learned arguing counsel with Mr. Zubin Bharda, learned advocate for the applicant and Ms.Moxa Thakker, learned Additional Public Prosecutor for the respondent – State assisted by Mr.Bhavesh Sarode, learned advocate for the original complainant through video conferencing. 3. Mr.Yatin Oza, learned arguing counsel with Mr. Zubin Bharda, learned advocate for the applicant has submitted that the applicant is absolutely innocent and has not committed any offence as alleged. He has submitted that the main accused – Ramiz Mohamahadbhai Ghanchi has preferred Criminal Misc. Application No.17901 of 2020 wherein the Coordinate Bench (Coram: Hon’ble Mr.Justice B. N. Karia) has enlarged the said accused vide order dated 24.12.2020. While inviting the attention of this Court to the observation made by the Coordinate Bench in the said case, he has submitted that the Coordinate Bench has specifically observed that the version of the prosecution about the complainant being eyewitness to the incident is doubtful and concocted. He has also invited the attention of the Court to the observation made by the Coordinate Bench regarding recording of the statements of three witnesses namely Sarfaraz @ bando Mansuri, Ashraf @ Kati Mansuri and Inayat @ Eno Mansuri who happened to be at the scene of offence and took the deceased to Bhagyodaya Hospital in the auto- rickshaw and one person known as Bapu among the locals, he has submitted that the statements of these witnesses reflects contradictory statements. He has also submitted that in view of the facts that on the ground of parity, the applicant may be enlarged on bail. 4. He has also submitted that in view of the facts that on the ground of parity, the applicant may be enlarged on bail. 4. Per contra, Ms.Moxa Thakker, learned Additional Public Prosecutor for the respondent – State assisted by Mr.Bhavesh Sarode, learned advocate for the original complainant, who has filed the affidavit in this case, have invited the attention of this Court to the various statements made in the case along with the copy of the charge-sheet and has submitted that the present applicant is a prime accused who has inflicted blows with the iron rod on the deceased and due to almost 31 injuries on the body of the deceased, he has succumbed to injuries. While reading the complaint as well as various statements of the witnesses, she has vehemently submitted that prior to the incident, there was collusion between the two vehicles and due to first incident, which has happened on highway and, thereafter, the deceased was brought to the Chabutara Chowk and the accused named in the FIR have inflicted blows with iron rod and sticks upon the deceased. She has submitted that the deceased, while going to the hospital in rickshaw, has given dying declaration to aforesaid three eyewitnesses of the incident. While referring to the statement of one Chisti Moinmiya Kalumiya, she has submitted that earlier incident of dashing of two vehicles is clearly reflected from his statement. She has submitted that on reading of these statements, it transpires that the accused – Ramiz Mohamahadbhai Ghanchi who has been enlarged on bail by the Coordinate Bench was not present at the time of incident and, therefore, the ground of parity is not available to the present applicant. She has submitted that the present accused is prime accused and from the statements of the complainant as well as three eyewitnesses, the actual role is attributed to the present applicant. She has submitted that considering the affidavit filed by the original complainant and the fact narrated by the various witnesses, this Court may not exercise discretion under Section 439 of the Criminal Procedure Code and the application may be rejected. 5. Mr.Bhavesh Sarode, learned advocate for the original complainant has submitted that considering the affidavit of the complainant, the application may be rejected. 6. In rejoinder, Mr.Yatin Oza, learned arguing counsel with Mr. 5. Mr.Bhavesh Sarode, learned advocate for the original complainant has submitted that considering the affidavit of the complainant, the application may be rejected. 6. In rejoinder, Mr.Yatin Oza, learned arguing counsel with Mr. Zubin Bharda, learned advocate for the applicant has submitted that as per the statements of the three eyewitnesses there is no narration of the dying declaration being given by the deceased in the auto-rickshaw. He has submitted that as per the eyewitnesses, there is contradiction regarding the use of the weapons in the alleged crime. He has submitted that considering the fact that the accused is in jail since 13.10.2020 and the alleged incident said to have been happened at the instance of Ramiz Mohamahadbhai Ghanchi who has been enlarged on bail by the Coordinate Bench, on the ground of parity, this Court may exercise discretion under Section 439 of the Criminal Procedure Code. 7. Having considered the submissions canvassed by the learned advocates for both the sides and considering the materials placed on record and the order dated 24.12.2020 passed by the Coordinate Bench in Criminal Misc. Application No.17901 of 2020, it transpires that there is no dispute that the deceased died due to the various injuries sustained by him. It also appears from the record that the alleged incident has happened in night hour of 23.09.2019. It also appears from the charge-sheet papers that the statements of the alleged eyewitnesses have been recorded after almost three months. It also appears from the statement of the alleged three eyewitnesses that there is contradictory statements regarding the use of the weapons by various persons. It is pertinent to note that the Coordinate Bench has observed that the presence of the complaint is doubtful and that version of the prosecution of the complainant being eyewitness to the incident is doubtful and concocted. 8. It is an admitted facts that earlier Criminal Misc. Application No.3256 of 2020 was preferred by the present applicant which came to be withdrawn with a liberty to file a fresh one before the appropriate Court after recording of the evidence of the complainant or four months from 23.09.2020 whichever is earlier. In view of the withdrawal of the earlier application, the applicant has approached the Trial Court while preferring Criminal Misc. Application No.402 of 2021 which came to be rejected by the 5th Additional Sessions Judge, Mahesana vide order dated 30.04.2021. 9. In view of the withdrawal of the earlier application, the applicant has approached the Trial Court while preferring Criminal Misc. Application No.402 of 2021 which came to be rejected by the 5th Additional Sessions Judge, Mahesana vide order dated 30.04.2021. 9. It is an admitted fact that no trial has still begun. Further, the version of the complainant being eyewitness to the incident is observed by the Coordinate Bench as doubtful and concocted. 10. It also appears from the record that ; (a) On 23.09.2019, the offence was taken place between 10.00 p.m. to 10.30 p.m. (b) On 24.09.2019 at about 18.15 hours, the FIR came to be lodged. (c) On 24.09.2019, the statement of Dr.Gori Sharifkhan Nasirkhan was recorded. (d) As per the Forensic Science Laboratory report, no blood stain has been found on the shirt and pant worn by the present applicant and on the iron rod alleged to be used by the applicant and no blood stand was found on sword also. (e) As per the statement of eyewitness Ashraf @ Ashalo Ibrahimbhai, the present applicant was having sword in his hand. He did not mention regarding the dying declaration given by the deceased to him. (f) As per the statement of Khokhar Munafbhai Akbarbhai Sarvarkha - rickshaw driver, the iron rod was with the applicant. As per his version, the deceased has told him in the V. S. Hospital that other persons including the present applicant has beaten him. (g) As per the statement of eyewitness Mansuri Inayatbhai Yunusbhai Sulehmanbhai, the present applicant was having sword in his hand. He does not reflect that the dying declaration was given by the deceased, though he was in rickshaw and brought him to the hospital. (h) Pathan Imrankhan Amirkhan was also alleged to be eyewitness and who brought the deceased to the hospital in his rickshaw, he has stated in his statement that these persons including the present applicant was having iron rod and they were beating the deceased. According to his statement, deceased has told him in V. S. Hospital that all persons have beaten him severely. (i) As per the MLC certificate dated 27.09.2010 issued by the Bhagyodaya General Hospital, the deceased was brought in injured condition on 24.09.2019 at 12.36 a.m. wherein the history was given that few persons at Kadi Chabutara Chowk assaulted with wooden stick on various part of the body. (i) As per the MLC certificate dated 27.09.2010 issued by the Bhagyodaya General Hospital, the deceased was brought in injured condition on 24.09.2019 at 12.36 a.m. wherein the history was given that few persons at Kadi Chabutara Chowk assaulted with wooden stick on various part of the body. However, no name of any assailant is given. (j) As per the injury certificate issued by SVP Hospital at Ahmedabad history was given by Chisti Moinmiya Kalumiya (friend of patient) wherein he has not mentioned the name of any persons and has also stated that the assault was made by the opposite party on 23.09.2019 at 11.45 p.m. 11. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. 12. Considering the aforesaid facts coupled with the observations made by the Coordinate Bench doubting the complainant being eyewitnesses and observing that the story of the complainant is concocted and the fact that the trial has yet not taken and the principles laid down by the Apex Court in various decisions including the decision in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 , the application deserves to be allowed. This Court has also taken into consideration the following aspects in additions of the aforesaid aspects; (i) That other accused is enlarged on bail by the Coordinate Bench vide order dated 24.12.2020 passed in Criminal Misc. Application No.17901 of 2020; (ii) The accused is in jail since 13.10.2020; (iii) The assurance given by the learned advocate for the applicant that the applicant will abide by all the conditions that may be imposed by this Court; (iv) The accused will be available during the trial; (v) There is no possibility of flee away from the justice; 13. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 ; 14. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 ; 14. In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.I – 165/2019 registered with Kadi Police Station, District: Mehsana, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one local surety of the like amount to the satisfaction of the learned 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; c. surrender his passport, if any, to the lower court within a week; d. not leave the State of Gujarat without prior permission of the concerned Trial Court; e. mark presence before the concerned Police Station on every third Monday of every English calendar month between 10:00 a.m. and 2:00 p.m. till the trial is over; f. shall not enter into the Mehsana District till the trial is over except for marking his presence before the concerned Police Station and attending the Court proceedings. g. furnish latest 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 the Trial Court; 15. 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 concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial 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. 16. 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. 16. It is clarified that the observation made hereinabove is only for the purpose of deciding the present application and the Trial Court shall not be influenced by any of the observation made by this Court while dealing with the bail application and shall decide the Sessions Case in accordance with law and on merits. 17. The application stands disposed of accordingly. Rule is made absolute accordingly. Direct service is permitted.