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2022 DIGILAW 1319 (GUJ)

Sunil Babubhai Bajaniya v. State Of Gujarat

2022-10-11

ILESH J.VORA

body2022
ORDER : 1. Heard learned Senior Counsel Mr.B.B. Naik, assisted by Mr.Sanjay Prajapati, learned counsel for and on behalf of applicant-accused, learned Senior Counsel Mr.J.M. Panchal assisted by Mr.Ekant Ahuja, for the original informant and Ms.Krina Calla, learned APP for the respondent-State. 2. This regular bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for short) by the applicant-accused in connection with C.R.No.11191005220281 of 2022, registered at Khadia Police Station, Ahmedabad, for the offences punishable under Sections 143, 144, 147, 148, 149, 201, 302 and 120B of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act. 3. According to the prosecution case, accused no.1-Montu @ Namdar Gandhi is the cousin brother of the complainant – Pawan Mukesh Gandhi. Accused no.1, married to sister of the complainant in the year 1992 which was not acceptable by the family members, as a result of which, there were inter-se family disputes. The father of the complainant had executed the Will in the year 2020, wherein sister of the complainant was not given any share in the property and therefore, accused no.1 and his wife were aggrieved by the Will executed by the father of the complainant. Deceased – Rakesh Mehta stood in the witness in the Will and was very much associated with the family of the complainant. Accused no.1 was also aggrieved by the relationship of the deceased with the complainant. 4. In the aforesaid facts, accused no.1 and his accomplices, hatched the criminal conspiracy to eliminate deceased Rakesh Mehta. In order to execute the criminal conspiracy, unlawful assembly formed on 08.06.2022 with a common object to kill the deceased. It is a case of the prosecution that on the day of the incident, when deceased and his friend Yogesh Joshi passing nearby the office of accused no.1, he was brutally assaulted by baseball bat. It is alleged that accused no.1 – Montu Gandhi and five to six other persons, being a member of unlawful assembly, assaulted the deceased, as a result of which, he succumbed to the injuries on the same day. The complaint came to be filed by the complainant Pawankumar Gandhi inter alia alleging that Montu Gandhi had assaulted the deceased and other persons, whose faces covered with the mask and handkerchiefs. The complaint came to be filed by the complainant Pawankumar Gandhi inter alia alleging that Montu Gandhi had assaulted the deceased and other persons, whose faces covered with the mask and handkerchiefs. His further statement was recorded on the next day, wherein name of accused nos.2 and 3 have been disclosed. Statements of Witnesses Yogesh Joshi and Josh Jugnu have also recorded, wherein names of accused nos.2 and 3 have been disclosed. It is to be noted that the statement of witness Josh Jugnu, under Section 164 of the Code has been recorded where the identity of the present applicant accused has been disclosed. 5. In the aforesaid facts, the present applicant implicated as accused no.4 and he was arrested on 20.06.2022 and finally chargesheet came to be filed against in all four accused for the offences as referred above. 6. Mr.B.B. Naik, learned Senior Counsel for the applicant – accused urged that the applicant has been falsely implicated in the alleged offence as earlier he was working with accused no.1. It is in this context, he submitted that as per the prosecution case, the witnesses were unable to identify accused as their faces covered with the mask. He further submitted that none of the witnesses have identified the applicant accused and his name is not disclosed during the course of the prosecution and therefore, how the name of the present applicant in the alleged offence cropped up, as there is no iota of evidence to link the applicant in the alleged offence. He further submitted that when witnesses unable to identify the accused, the Investigating Agency failed to conduct T.I. Parade so as to strengthen the prosecution case, so far as the involvement of the applicant is concerned. He further submitted that nothing has been recovered or discovered from the applicant accused. The weapon baseball has been recovered from the accused no.1. 7. In such circumstances, learned Senior Counsel submitted that if the prosecution case accepted as it is, then also involvement of the applicant is not established. Thus, when there is no reasonable ground to believe that the applicant was involved in the alleged conspiracy hatched by accused no.1 and his participation in the offence is not established, keeping the applicant behind the bar for indefinite period would violate his fundamental rights of freedom enshrined under the Constitution of India. 8. Thus, when there is no reasonable ground to believe that the applicant was involved in the alleged conspiracy hatched by accused no.1 and his participation in the offence is not established, keeping the applicant behind the bar for indefinite period would violate his fundamental rights of freedom enshrined under the Constitution of India. 8. Opposing the bail application, learned Senior Counsel Mr.J.M. Panchal for the original informant and learned APP Ms.Krina Calla for the respondent-State, reiterating the contents of the affidavit filed by the complainant, contended that the alleged act of murder is result of deep conspiracy hatched by accused no.1. Accused no.1 and coaccused have ran away from the seen of offence which is evident from the CCTV Footage collected from the vicinity of the area. The office of accused no.1 is located in the old city of Ahmedabad and considering this aspect, accused no.1, intentionally, disconnected the CCTV cameras and at the relevant time, it was not in a working condition. In such circumstances, it was submitted that when the accused have hatched a well plan conspiracy in secrecy and considering the nature of assembly, the arms carried by the members and their behaviors, it is established that accused have acted in furtherance of common object of unlawful assembly and therefore, the issue of identification of the applicant accused cannot be given much weighatage as it is to be tried by the Trial Court. It is in this context, it was submitted that no case is made out to exercise discretion in favour of the applicant at this stage and application may not be entertained. 9. Heard at length learned counsel for the respective parties and perused the chargesheet case papers as well as the affidavit of the complainant. 10. Having regard to the facts and circumstances of the present case, the applicant accused has been implicated as accused no.4 in the alleged offence. On careful evaluation of chargesheet case papers, it appears that initially the eyewitness Yogesh Joshi and other persons, who were assembled at the scene of offence, did not have disclosed the name of the applicant. Witness Josh Jugnu has also not disclosed the name of the applicant. Witness Josh Jugnu, in his statement recorded under Section 164 of the Code, disclosed the name of the applicant. This Court has also considered the contents of the statement, placed by learned APP. Witness Josh Jugnu has also not disclosed the name of the applicant. Witness Josh Jugnu, in his statement recorded under Section 164 of the Code, disclosed the name of the applicant. This Court has also considered the contents of the statement, placed by learned APP. At this stage, it is not proper to discuss the contents of the statement recorded under Section 164 of the Code as it may cause prejudice the right of the either of the parties. In such circumstances, this Court is of the view that when the name of the applicant was not disclosed in the alleged offence for a considerable time and no any T.I. Parade of witness Josh Jugnu and others conducted by the Investigating Agency, the matter deserves consideration. This Court is conscious about the fact that accused is charged with serious offence. However, that itself is not a ground to deny in bail, if there are other circumstances justifying grant of bail. 11. For the foregoing reasons, considering the role attributed to the present applicant herein and evidence in support of the charge and when the applicant does not have any past record, imposing stringent condition, I am inclined to release the applicant on bail. 12. Hence, the bail application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No.11191005220281 of 2022, registered at Khadia Police Station, Ahmedabad, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall: No. Conditions (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injuries 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 Sessions Judge concerned; (e) 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; (g) not enter into the jurisdictional areas of Khadia Police Station and Satellite Police Station where the complainant and his family reside, till conclusion of the trial, except to attend the Court proceedings and mark presence before the concerned Police Station, if any; 13. The authorities shall release the applicant if he is not required in connection with the any other offence. If breach of any above condition is committed, the Sessions Judge concerned shall take appropriate action or issue warrant against the applicant. The bail bond to be executed before the learned trial Court having jurisdiction to try the case. It will be open for the sessions judge concerned to delete, modify and/or relax any of the above conditions, in accordance with law. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute to the aforesaid extent. Direct Service is permitted.