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Gujarat High Court · body

2022 DIGILAW 1810 (GUJ)

Vaghari Sanjaybhai Arjanbhai v. State Of Gujarat

2022-12-19

GITA GOPI

body2022
JUDGMENT : 1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with the FIR being C.R.No.11206002220236 of 2022 registered with Visnagar Taluka Police Station, Dist: Mehasana punishable under Sections 302, 307, 143, 147, 148, 149, 504, 506(2), 427, 337 of the Indian Penal Code and Section 135 of the G.P.Act. 2. Mr.Pratik Barot, learned advocate for the applicants stated that the incident of 02.04.2004 has led to filing of two FIRs, and since nephew of the complainant in the present FIR, Mahesbhai Dashratbhai died, hence the FIR attracted Section 302 of the Indian Penal Code for murder; while the cross complaint invokes the provisions of Sections 323, 324, 504, 506(2), 143, 147, 148, 149, 337 of the IPC and Section 135 of the G.P. Act, which was registered on the very same day i.e. on 03.4.2022 being FIR No.11206002220236 of 2022 registered with Visnagar Taluka Police Station, Dist: Mehasana. 2.1 Mr.Barot submitted that actual genesis of the crime is suppressed by the complainant which gets clarify from the statement of witnesses, medical evidence and cross FIR and even by the medical evidence and chargesheet of the present matter. Mr.Barot submits that the place of incident initially shown near ‘Meldi Mata Temple’ which begins from an issue of parking of the Rikshaw (chhakdo) near the temple. Mr.Barot further submits that actually the incident had occurred when the father of the complainant of cross FIR, Arjanbhai Lakhabhai, had gone at the temple to rebuke them for teasing his granddaughter. Mr.Barot submits that drawing a case from parking of ‘Chhakdo’ Rikshaw, becomes improbable, and as per the version, the brother of the complainant, Chunilal Balchandbhai, had asked Karan Sanjaybhai not to park the vehicle near the temple, to that it is alleged that, he told him that he would park his vehicle there as it not their father’s property. Advocate Mr. Barot submits that, as per the prosecution case, during that period, Dharmendra Arjanbhai came there and asked them, as to why, they are threatening him. The complainant’s brother Chunilal again asked him not put his ‘Chhakdo’ there, and it is stated that at this time Arjanbhai Lakhabhai came there and started abusing and threatening them saying that the ‘Chhakdo’ would be parked there only, and asked them to do whatever they want. The complainant’s brother Chunilal again asked him not put his ‘Chhakdo’ there, and it is stated that at this time Arjanbhai Lakhabhai came there and started abusing and threatening them saying that the ‘Chhakdo’ would be parked there only, and asked them to do whatever they want. It is further stated that Chunilal asked Arjan Lakha not to threaten him; at that time, it is alleged that Karan Sanjay and Dharmendra Arjan with their knifes assaulted Chunilal Bhaichandbhai and caused injury at his left ear. 2.2 Referring to the Medical Certificate of Chunilal Bhaichand, Advocate Mr.Barot submits that, Chunilal Bhaichandbhai before the Medical Officer, General Hospital, Mehsana has given the history on his own and had stated about the assault injury at Hasanpur around 7.00 p.m. beaten with pipe by Sanjaybhai Arjanbhai, Dhanabhai Arjanbhai and Kishanbhai Mogarbhai. Mr.Barot further submitted that the injury was alleged to have been caused by knife, but the history suggests that he was beaten with pipe by three of the persons by adding Dhanabhai Arjanbhai and Kishanbhai Mogarbhai with Sanjaybhai Arjanbhai. Mr.Barot submitted that prior to that, the Injury Certificate of General Hospital, Vishnagar reflects the history that on 02.04.2022 at about 7.00 in the evening near Hasanpur temple, Sanjaybhai, Arjanbhai and Arjanbha’s two sons had beaten him with wooden baton and knife, while the said case is not reflected in the FIR. Mr.Barot submits that this itself suggests that the genesis of the original complaint gets falsified. 2.3 Mr.Barot further submitted that, had the issue arose because of the ‘Chhakda’ Rikshaw, then there would not have on the side of the driver of ‘Chhakda’, who is shown as Karan Sanjay, to have with him knife near the temple premises. He further submitted that the very case of showing an injury with the knife on Chunilal Balchandbhai is false on the face of the record; the injury that gets reflected in the Medical Certificate is simple injury with hard and blunt object, as opined by the Doctor of General Hospital, Visnagar. 2.4 Mr.Barot submitted that as per the statement of the girl aged about 15 years Hiralgranddaughter of Arjanbhai Lakhabhai, she had gone near the temple, and they had teased her. 2.4 Mr.Barot submitted that as per the statement of the girl aged about 15 years Hiralgranddaughter of Arjanbhai Lakhabhai, she had gone near the temple, and they had teased her. According to her statement recorded on 12.04.2022, she had informed her grandfather that, when she was going towards home after carrying the milk at about 7.00 on the very same day near the ‘Meldi Mata Temple', Mahesh Dashrath told her something and therefore, she informed the same to her grandfather Arjanlakaha, who had gone to rebuke Mahesh Dashrathbhai, and according to the statement of the minor victim, after sometime, there was outcry near ‘Meldi Mata Temple’ as her grandfather was shouting as Mahesh Dashrathbhai was beating her grandfather, and therefore she, her mother, aunt - Kantaben Sanjaybhai and her sister Gayatriben had gone there to relieve them; and according to her statement at that time her uncle Sanjaybhai’s son Karan had come there, who was heading towards home on ‘Chhakdo’, stopped his vehicle near the temple, and he intervened to release. Maheshbhai Dashrathbhai, Vishnu Dashrathbhai, Sagar @ Lalabhai Rajubhai and Chhanabhai Bhalchandbhai were present there, during that period, as per the statement of victim, Mahesh Dashrathbhai hit Karan on his head with iron pipe and Chhanabhai Bhalchandbhai were present with stick had beaten him on the shoulder; while Vishnu Dashrathbhai with a ironpipe and Dayabhai Bhaichand too with ironpipe had beaten her uncle Sanjaybhai on the head; and Vishnubhai had beaten her father Dharmendrabhai with an iron pipe. The victim girl had given further details about the injury sustained by her aunt Kantaben, Madhiben and her grandfather at the hands of deceased Mahesh Dashrathbhai with iron pipe. She further stated that at that time, Pintu Sampatbhai and Dinesh had thrown bricks on her and her mother and they were also injured. 2.5 As per the present FIR, the incident near ‘Meldi Mata Temple’, after the assault on Chunilal Bhaichand, the Complainant, Vishnu Dinesh, Arbind Girdhar, Lalabhai Rajabahi and Pintu Sampatbhai intervened and got Chunilal release, and they were moving towards their home. Here, they are not accompanied by deceased Mahesh Dashrathbhai. While the cross complaint shows the presence of deceased Maheshbai Dashratbhai, but actually the grandfather had gone at the temple to scold Maheshbhai. Here, they are not accompanied by deceased Mahesh Dashrathbhai. While the cross complaint shows the presence of deceased Maheshbai Dashratbhai, but actually the grandfather had gone at the temple to scold Maheshbhai. 2.6 As per the FIR, all of them were heading towards home alongwith injured Chunilal, reaching at a place near the house of Kanubhai Balchandbhai, it is stated that Karan Sanjaybhai, Dharmendra Arjanbhai, Dipak Ashok, Sanjay Arjanbhai, Arjanlakhabhai, Bholusanjaybhai, Prahaladbhai Shankarbhai, Kishannagar, Dinesh Shankarbhai, Vishalprakash, Prakash Atmaram, Babubhai Shankarbhai, Rahulrajubhai, all in a unity had caused assault on them and it is stated by the complainant that at this time, the nephew Maheshbhai Dashrathbhai intervened. 2.7 Mr.Barot submitted that the very entry of Maheshbhai at the place near the house of Kanubhai Bhaichandbhai becomes doubtful since he was not present alongwith others at Meldi Mata’s Temple. He further submitted that cross FIR is required to be read as at the very temple, grandfather Arjanbhai specifically stated that he had gone to scold Maheshbhai Dashrathbhai as he had teased the minor girl. 2.8 As per the FIR, when Maheshbhai Dashrathbhai intervened, Prahaladbhai, Kishanbhai Nagarbhai, Dineshbhai Shankarbhai, Vishal Prakashbhai, Prakash Atmaram, Babubhai Shankarbhai, Rahul Rajubhai had caught hold of Maheshbhai Dashrathbhai, and the complaint further says that, Deepakbhai Ashokbhai, Dharmendrabhai Arjanbhai, Karanbhai Sanjaybhai, Sanjaybhai Arjanbhai, Ashokbhai Arjanbhai, all with their knife assaulted Maheshbhai and caused injury. It is stated that to save Maheshbhai from further beatings, the complainant’s nephews Lalabhai Rajubhai, Munnabhai Kanubhai and the deceased’s son – Yogesh intervened and thus, Lalabhai Rajubhai, Vishal Prakash flinged bricks and Munnabhai Kanubhai, Dharmendra Arjanbhai, Karan Sanjaybhai, with their knifes and Arjanbhai Lalabhai with iron-crowbar, made deadly assault and caused injury. Bholu Sanjay injured Yogeshbhai on head with ironcrowbar, and thereafter, as the complainant’s nephew got unconscious, it is stated that all ran away from the place and during that period, the deceased’s brother Vishnubhai, deceased’s daughter Renuka, deceased’s sister Asha and deceased’s wife Bhavana came at the place and Vishnubhai called 108 ambulance since the health of Maheshbhai worsened, therefore, they made him sleep in the EEco Car of Vishnubhai and took him for medical treatment. It is alleged that when they were going out from Vagri Vas, Karan Sanjay, Sanjay Arjan threw bricks on the EEco Car, which damaged left side glass. 2.9 Mr. It is alleged that when they were going out from Vagri Vas, Karan Sanjay, Sanjay Arjan threw bricks on the EEco Car, which damaged left side glass. 2.9 Mr. Barot submitted that Lala Rajubhai, Munnabhai Kanubhai and Yogesh Maheshbhai, are the persons who have alleged to have received deadly assault from the accused, while Lalabhai Rajubhai was not medically examined by any Doctor. As per the medical history of Kenilbhai Kanubhai, who is Munnabhai Kanubhai, he had stated that he was beaten by Arjanbhai Lakhabhai, Sanjaybhai Lakhabhai, Ashokbhai Arjanbhai with the stick and bricks. Mr. Barot submits that there is a stitch wound near left occupital region 3 cm long abrasion. According to Advocate Mr.Barot, there was a group clash between all the present over the statement of Yogesh Maheshbhai – history given before the Doctor shows that he was assaulted with iron-crowbar by Ashok Arjan, Arjan Lakha, and Sanjay Lakha the incise wound so received is concluded from a sharp cutting object by the Medical Officer. 2.10 Mr.Barot submitted that in cross complaint, almost 13 persons were injured, which includes Madhiben Ashokbhai, Hiralben Dharmendrabhai, Ashokbhai Aryanbhai, Kunal Sanjaybhai, Karan Sanjaybhai, Dharmendra Aryanbhai, Gayatriben Ashokbhai, Kokilaben Dharmendrabhai, Kantaben Sanjaybhai, Aryanbhai Lakhabhai, Sanjaybhai Aryanbhai. He further submits that on 02.04.2022 between 7.50 p.m. to 8.20 p.m., few of them were brought in 108 ambulance and others had gone with some relatives and the Medical Officer, Visnagar had examined them, and for further treatment, they were referred to General Hospital, Visnagar at around 9.00 to 10.00 p.m. Mr.Barot submits that Kantaben was admitted as an indoor patient on 03.04.2022 and discharged on 05.04.2022. Doctor’s Opinion for Ashokbhai Arjanbhai for injury which was crushed grievous was by hard and blunt object. Sanjaybhai Arjanbhai was also referred for surgical opinion which the injury was observed to be simple in nature. Dharmendra Arjanbhai was admitted on 03.04.2022 and surgical opinion shows that the injury was with hard and blunt object and injury No.4 was by sharp object. Madhiben Ashokbhai’s surgical opinion reflects that both the injuries were fresh and simple caused by hard and blunt object. Gayatriben Ashokbhai’s Orthopedic opinion shows simple injury caused by hard and blunt object. Surgical opinions of Kokilaben and Hiralben also show fresh and simple injuries. Madhiben Ashokbhai’s surgical opinion reflects that both the injuries were fresh and simple caused by hard and blunt object. Gayatriben Ashokbhai’s Orthopedic opinion shows simple injury caused by hard and blunt object. Surgical opinions of Kokilaben and Hiralben also show fresh and simple injuries. Karanbhai Sanjaybhai’s surgical opinion shows that Injury Nos.1, 2, 3, 4 were simple and Injury No.3 & 4 were caused by hard and blunt object. Arjanbhai Lakhabhai’s injury Nos.1 & 3 were found to be grievous caused by hard and blunt object and there was fracture noted on the right shoulder and on the left hand index finger. Mr.Barot submitted that there is no explanation from the complainant about injuries sustained by accused and the witnesses of cross FIR. It was, therefore, prayed that the present application may be allowed and the applicants herein may be released on regular bail. 3. Countering the arguments, Mr.Pranav Trivedi, learned APP, vehemently contended that all the medical reports in the cross complaints are got up and afterthoughts. He submitted that very cross complaint is developed only after having found that Maheshbhai Dasrathbhai had succumbed to death because of brutal injuries caused by knife at the vital organ of the body. Mr.Trivedi submitted that there were about seventeen injury which include seven injury near the right and left nipples and one incised wound around 3 x 1 cm length at the scalp, and one incise wound at left temporal lower part horizontal 3 cm x 1 cm horizontal both angle acute and about 4 abrasions and a stab incise wound on left scapula, one stab incise wound at the right side back and two further abrasion. Mr.Trivedi submitted that the incise wound at the lungs have become fatal and the cause of death was shock due to injury to right lung. He further submitted that the whole family of Arjanbhai Lakhabhai was involved, and thus chargesheet has been filed against eight of them, where one is child in conflict with law. Mr.Trivedi, submitted that all the accused had intention to do away with Maheshbhai and therefore with a perfect design, armed with knife and iron pipe, iron-crowbar had assaulted and caused deadly injury to the deceased and thus, submitted that no case of even self defence could be considered, more so, at the bail stage where the whole family was involved in the incident. 3.1 Referring to the Judgment of State of Gujarat Vs. Lalji Popat & Ors. reported in 1988 (2) GLH 114 , Mr.Trivedi submitted that, the paramount consideration for bail has to be kept in mind and the alleged weapon is the knife and iron- crowbar, and when the nexus of the incident and the death is clear on record, even supported by the medical evidence and postmortem report, Mr. Trivedi submitted that though there is a group rivalry, the case has to be viewed seriously and bail application required to be rejected. Mr. Trivedi further submitted that all the accused were aggressors and the deceased had intervened to stop the quarrel while all the accused had made him the victim. Mr.Trivedi further submitted that as per the cross FIR, Dinesh Shankarbhai, Vishal Prakash, Rahul Rajubhai and Kunal @ Bhola Sanjaybhai, were the person who had intervened to stop the quarrel and had removed them from the place, but the very statement of those witnesses do not support the case put up in the Cross FIR, which has been filed with a delay of about 16 hours. The case of teasing minor girl is an afterthought and developed story to protect the skin, and such facts originated only after the death of Maheshbhai. It was, therefore, prayed that no discretion may be exercised in favour of the applicant. 4. Countering the arguments, Mr.Barot, relied upon the judgment in the case of Suresh Singhal Vs. State (Delhi Administration) reported in 2017(0) AIJEL-SC 59672 and in the case of Ex.Ct. Mahadev Vs. Director General, Boarder Security Force reported in 2022 (0) AIJEL-SC-69440 and in the case of Gurwinder Singh @ Sonu Etc. Vs. State of Punjab reported in 2018 (0) AIJEL-SC-62251 and submits that the place of occurrence gets changed in the FIR of the complainant, the chargesheet does not disclose who are the aggressors. The injuries sustained by about thirteen of the witnesses of the other side have not been explained. Mr. Barot stated that there is no evidence to show that accused had come with deadly weapons, nor any purposeful design could be shown in the FIR that the accused had the intention to kill Maheshbhai. The injuries sustained by about thirteen of the witnesses of the other side have not been explained. Mr. Barot stated that there is no evidence to show that accused had come with deadly weapons, nor any purposeful design could be shown in the FIR that the accused had the intention to kill Maheshbhai. Mr.Barot stated Section 97 of the IPC provides for the right of private defence of the body and of property and such right of private defence is available when the accused are suddenly confronted with the necessity of averting an impending danger, and if the accused apprehends that such an offence is contemplated, and when there is actual commission of offence, the accused would have right to exercise the private defence. It is further stated that it is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude and in process, if the person sustained injuries succumbs to death then every injury to the deceased is not required to be explained when the injury sustained by the accused have not been explained by the prosecution. Mr.Barot states that the case would fall under Section 304 of the IPC and there are evidence which shows that the deceased inflicted injuries to almost all and was carrying wooden baton in his own car. 5. The genesis of both the FIRs, which has arisen from the common accident are shown to be different; one is shown as ‘Chhakdo’ vehicle while the cross complaint status of the deceased having teased the minor girl, and the grandfather thus had gone at the temple to rebuke the other side; while the presence of deceased has not been shown at the temple in the FIR, while cross complaint states that the grandfather has scolded the deceased at the temple. The initially place of incident, as per the present FIR, is the ‘Meldi Mata Temple, and it is alleged that Karan Sanjaybhai and Dharmendra Arjan, who had came in ‘Chhakdo’ vehicle had assaulted with knife and had injured Chunilal Bhaichandbhai at his left ear; while the medical certificate of Chunilal shows the injury on the left ear as CLW 1.5 c.m., which according to the history given by him before the Medical Officer, he was beaten by pipe at 9.55 p.m., and on 8.10 p.m. before the Medical Officer, General Hospital, Vishnagar, stated that he was assaulted with the wooden baton and knife. According to the observation of the Medical officer, the injury would be possible by hard and blunt object. Thereafter, the FIR changes the place of incident, which is near the house of Kanubhai Bhaichandbhai; while in the cross FIR, the incident continues at ‘Meldi Mata Temple’. Though, many from the side of the complainant were present there, it is alleged that nine of them had caught hold of Mahesh Dashrath and five of them had inflicted blows, which are accused Nos.1, 2, 3, 4 & 6, and thus it is alleged that Dipak Ashokbhai, Dharmendra Arjanbhai, Karan Sajnaybhai, Sanjay Arjanbhai, Ashok Arjanbhai inflicted knife blows on Mahesh Dashrath. It is required to be observed that seven had caught hold of deceased and five have inflicted blows. 6. Here, in this case, chargesheet is only against nine, which includes, one in Column-II as juvenile in conflict with law. Arjan Lakha and his 3 sons viz. Dharmendra, Sanjay, Ashok, son of Sanjay Karan and son of Ashok – Dipak, are shown to be inflictors; while Lalabhai Rajubhai, Munnabhai Kanubhai and Yogesh Maheshbhai were the persons, who had intervened, but as noted, none had not sustained any vital injury. According to the chargehseet, Lalabhai Rajubhai had not even visited the Doctor, while Yogesh Maheshbhai was given treatment at OPD and Munna Kanubha was observed to have sustained injury by hard and blunt object. Thirteen witnesses from the side of the accused had sustained injury which included women, while none others from the complainant side had received any vital injury. The panchnama, was drawn of the Car of the deceased Maheshbhai, which was at the place of offence being No.GJ18-DA-3451. Thirteen witnesses from the side of the accused had sustained injury which included women, while none others from the complainant side had received any vital injury. The panchnama, was drawn of the Car of the deceased Maheshbhai, which was at the place of offence being No.GJ18-DA-3451. The Panchnama refers the EECO Car from which below the middle seat, the panchas found 55.5 inch wooden baton, and another wooden baton of 29.5 inch from the rear side of the Car, and on both the wooden sticks the Panchas found blood stains which was seized under the instructions of F.S.L. Officer. Panchnama drawn of scene of offence is common in both the FIRs. The place of offence is shown as 100 ft. distance between ‘Meldi Mata Temple’ towards south to road at Munnabhai Kanubhai Bhaichandbhai Devipujak’s house, on the blocks at the front-yard of the Meldi Mata Temple, two cement benches were observed and near the bench they found wooden stick and blood stains were also observed; the stick was sent for FSL examination. The blood stains were also observed at the block pavement near the temple. Near the house of accused Sanjay Arjan, near the cabin, they found iron cot and wooden stick, the stick is observed to be a branch of a tree and even FSL Officer observed blood stains near his house; this stick found near the house of Sanjaybhai was also sent for FSL examination; thereafter at a distance of about 50 ft., between the house of Munnabhai Kanubhai Devpujak and Devipujak Ishwarbhai Lavjibhai on the RCC road within the circumference of about One Foot, the FSL Officer also observed blood stains; and on the northern side at about six feet distance from the house of Munnabhai too blood stains were observed. The ECO Car being No.GJ-18-DA-3451 of deceased was found near his house in damage condition. The glass pieces was seen inside the car and from the door of the car, the FSL Officer took samples from blood stains and as observed earlier, from below the seat, and from the rear side of car, wooden baton were seized. 7. At the place of incident, there were about 14 persons present there, while only nine of them have been made accused. 7. At the place of incident, there were about 14 persons present there, while only nine of them have been made accused. The injury which is alleged to have been sustained by Chunilal Bhaichand on the left ear does not appear to be any serious injury, while he has not given exact clarification of the weapon which has caused injury to him. While the people, who alleged to have intervened to protect the deceased have not sustained any vital injury. The bricks were thrown there; the weapon from the counter-side shown as stick, baton, iron pipe, iron-crowbar and knife. The prosecution has failed to explain why most of the family of Arjanbhai Lakhabhai were found involved, when the genesis of the complaint starts from parking of a Chhakda vehicle near the temple, which is a public place and would be a matter of importance for all the villagers. The cause of quarrel is not disclosed. How Maheshbhai Dasrathbhai, deceased, came at the place of the incident is not clarified as his presence is not shown at the temple and wooden baton were also found from the vehicle of the deceased. His car was found damage, while none of the persons, who had taken him to the hospital had sustained injury. 8. Considering the facts of the present FIR and cross FIR, where the presence of the deceased at the temple is not shown by the complainant, and when the injuries sustained by the witnesses of the Cross FIR, has not been explained, and the real cause does not get disclosed, and the attack and counter-attack as described by both the side creates different version, therefore, the discretion is exercised in favour of the applicants. 9. Hence, the present application is allowed. 9. Hence, the present application is allowed. The applicants are ordered to be released on regular bail in connection with the FIR being C.R.No.11206002220236 of 2022 registered with Visnagar Taluka Police Station, Dist: Mehasana on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) each with one surety of the like amount each to the satisfaction of the trial Court and subject to the conditions that the applicants 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] 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 the concerned trial court; 10. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicants only if the applicants are 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. 11. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.