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2022 DIGILAW 533 (GUJ)

Sunil Ustakbhai Vasava v. State Of Gujarat

2022-04-18

B.N.KARIA

body2022
ORDER : 1. The appellant preferred one Criminal Misc. Application No.66 of 2022 before the Court of learned 2nd Additional Sessions Judge, Bharuch requesting to enlarge the appellant on regular bail on account of offence being registered vide C.R. No.11199006211539 of 2021 with Ankleshwar Rural Police Station, Bharuch for the offence punishable u/s. 302, 504 and 114 of the Indian Penal Code and u/s. 3(2-v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein the learned 2nd Additional Sessions Judge, Bharuch rejected the said application on 08.02.2022. 2. Feeling aggrieved by the said order, the appellant preferred present appeal u/s 14A of the Atrocities Act. 3. Heard learned advocates for the respective parties as well as learned APP for the respondent-State. 4. Learned advocate for the appellant has submitted that the impugned judgment and order is contrary to law and evidence on record and the appellant is absolutely innocent person and has not committee any of the alleged offence and there is no prima facie case against the appellant. It is further submitted that the FIR is under the Atrocity Act is the gross misuse of the benefits which have been granted in favour of the reserved category by the Government. It is further submitted that from the entire chargesheet, it is nowhere directly or indirectly coming out on record nor there is any direct or circumstantial evidence to connect the appellant with the main offence which took place in 2 different parts on 2 different times and merely on the basis of earlier incident of first part of beating the victim and then leaving the place of incident, the appellant is implicated for offence of 302 as well when the entire case of prosecution itself in the FIR and in the chargesheet is that accused no.2 Mayuddin had come later on at the place of incident possessing knife and had given knife blows to the victim when no other accused was present. Moreover, weapon is recovered at the instance of accused no.2- Mayuddin from him during the investigation and his clothes were bloodstained and neither there is any recovery or discovery from the present appellant nor any bloodstain on the clothes were found. Moreover, weapon is recovered at the instance of accused no.2- Mayuddin from him during the investigation and his clothes were bloodstained and neither there is any recovery or discovery from the present appellant nor any bloodstain on the clothes were found. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order dated 08.02.2022 passed by learned 2nd Additional Sessions Judge, Bharuch and release the appellant on bail. 5. Learned APP for the respondent-State as well as learned advocate for the respondent no.2 have strongly opposed the submissions made by learned advocate for the appellant. Referring the complaint as well as the statement of Sunil Shantilal Vasava as well as Ratanben Chelabhai Masrubhai Dabhi, they have submitted that intention of the present appellant is very clear from the beginning that he decided to commit murder of the deceased as he was in love affair with the sister of the present appellant. It is further submitted that all the four accused persons were called by the present appellant. It is further submitted that before the incident, appellant and other accused persons were present and kick and fists blows were given by the present appellant along with the co-accused persons and threat was also given by the present appellant to commit murder of the deceased. It is further submitted that prima facie, involvement of the present appellant is established by the prosecution and appellant has played active role in commission of the offence. Hence, it is requested by learned APP for the respondent – State as well as learned advocate for the respondent no.2 to dismiss this appeal. 6. Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State and police papers produced on record, if we consider the FIR dated 04.12.2021 filed by the complainant viz. Shaileshbhai Vasava residing at Ankleshwar, it is alleged that before about one and half months, the appellant along with accused nos.2 and 4 had beaten the younger brother of the complainant viz. Sanjaybhai doubting that he was in love affair with the younger sister of the appellant and no complaint was given nor any settlement was arrived at by the complainant regarding the incident. Sanjaybhai doubting that he was in love affair with the younger sister of the appellant and no complaint was given nor any settlement was arrived at by the complainant regarding the incident. It is further alleged that on 04.12.2021, the complainant has gone to his in-laws place and the victim deceased was at his work place and the complainant has returned to his home at about 04:00 p.m. It is further alleged that at about 07:30 p.m., the victim had gone to his house after complainant had brought him home on his motorcycle from his work. It is further alleged that thereafter, the complainant had finished his dinner when his mother came running and informed him that the accused persons have come to beat victim Sanjay and asked him to go with her. It is further alleged that the complainant called his uncle Balu Dashrath and both went to the place of mother of the complainant and saw accused no.3 giving 2-3 slaps to the victim and accused nos.1, 2 and 4 also were slapping victim. It is further alleged that thereafter, accused nos.1 and 4 caught hold the victim and accused no.2 was hurling abusive language and was beating the victim and then, upon intervention of the complainant, all the 4 accused persons had gone away. It is further alleged that after sometime, accused no.2 Mayuddin Shaikh came to the house of the victim possession knife and caught hold him and gave knife blows on left side of stomach and chest as also on the back side of head and the victim started bleeding profusely and then, the victim was taken to hospital and was declared dead by the doctor and thus, upon the aforesaid allegations, a police complaint came to be registered. It appears that investigation was started by the Investigating Officer and after recording the statements of the witnesses and preparing panchnama and collecting postmortem report, chargesheet was filed before the concerned Court and Section 3(2)(ii) of the Atrocities Act was dropped. Further, it appears that incident took place in 2 different parts on 2 different times. In the first part of the incident, the appellant and co-accused persons gave kick and first blows to the deceased and thereafter, left the place of the incident. Further, it appears that incident took place in 2 different parts on 2 different times. In the first part of the incident, the appellant and co-accused persons gave kick and first blows to the deceased and thereafter, left the place of the incident. Thereafter, co-accused came at the place of the offence and gave certain blows with knife to the deceased when present appellant was not present. Further, it appears from the police papers produced on record, weapon was recovered at the instance of the Mayuddin during the investigation and his clothes were also found with bloodstain. There is no recovery or discovery from the present appellant nor any bloodstain on the clothes of the appellant were found. This Court has also considered the statement of sister of the present appellant. From the record and police papers placed on record, not a single blow was given by the present appellant nor any weapon was used by him in commission of the alleged offence in question. Chargesheet is already field by the prosecution and therefore, custody of the present appellant would not be required till the final disposal of the trial. There is no criminal antecedent against present appellant. Looking to the nature of the offence and participation of the present appellant in the alleged offence and considering the nature and gravity of assertion made against the appellant and in the facts and circumstances of the case and considering the nature of allegations made against the appellant in the First Information Report as well as considering the role of present appellant in the alleged offence, this Court is of the considered opinion that this is a fit case to exercise the discretion in favour of present appellant by enlarging him on regular bail and hence, the prayer sought for by the present appellant requires consideration. Hence, this Court is of the view that present appeal deserves consideration In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 08.02.2022 passed by learned 2nd Additional Sessions Judge, Bharuch shall be quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. Hence, this Court is of the view that present appeal deserves consideration In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 08.02.2022 passed by learned 2nd Additional Sessions Judge, Bharuch shall be quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant 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 this Court; 7. The authorities will release the appellant 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 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. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 8. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged. 9. Registry is directed to send a copy of this order to the concerned Jail Authority as well as Sessions Court concerned through fax forthwith.