R/CR.MA/5034/2022 ORDER DATED: 07/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5034 of 2022
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MANISHABEN W/O GAJJUGIRI GOSWAMI
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN BHARDA, WITH MR. DARSHAN M VARANDANI(7357) for the
Applicant(s) No. 1
MR N D NANAVATY, SR. COUNSEL WITH MR K S CHANDRANI(6674) for
the Respondent(s) No. 2
MR MITESH AMIN, PP WITH MR MANAN MEHTA, APP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 07/03/2023
ORAL ORDER
1. By way of this successive bail application filed under Section 439 of the Code of Criminal Procedure, the applicant accused Manisha Gajjugiri Goswami seeks regular bail in connection with the FIR being I-C.R.No.3/2019 registered with Gandhidham Railway Police Station, Western Railway, Ahmedabad, for the offences punishable under Sections 302, 120B, 397, 201 and 34 of Indian Penal Code, 1860, Sections 25(1)(b)(a) and 27 of the Arms Act, Sections 155, 141 and 145(B) of the Indian Railways Act and Section 135 of Gujarat Police Act.
2. The incident took place on 08.01.2019, whereas, the FIR came to be registered by the nephew of the deceased Sunil Bhanushali on 09.01.2019. The applicant herein arrested in the alleged offence on 04.11.2019 and chargesheet came to be filed Page 1 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 for the offence as referred above against her on 28.01.2020.
3. The applicant Manisha Goswami had preferred first regular bail application on 18.05.2020 and the same was rejected by the 10th Additional Sessions Judge, Bhachau, Kachchh vide order dated 06.06.2020.
4. The second successive bail application was preferred by the applicant herein on 23.12.2020 (CRMA No.427/2020) and the same was rejected by the 9th Additional Sessions Judge, Bhachau, Kachchh vide order dated 27.01.2021.
5. Being aggrieved by and dissatisfied with the order dated 27.01.2021, present application has been preferred by the applicant herein.
6. This Court has heard learned counsel Mr. Zubin Bharda with Mr. Darshan Varandani, appearing for and on behalf of the applicant, learned Senior Counsel Mr. N.D.Nanavaty assisted by learned counsel Mr. K.S.Chandrani, appearing for the original informant and learned Public Prosecutor Mr. Mitesh Amin assisted by learned APP Mr. Manan Mehta for the respondent State.
7. Facts and circumstances, giving rise to file present application are that, deceased Jayantibhai Bhanushali, former MLA, village Abdasa, Dist. Kachchh, was allegedly shot dead on board, Ahmedabad bound Sayajinagari Express, near Samakhiyali in Kachchh District in early hours of January, 7, 2019. It is alleged that, the accused Chhabil Patel, a former MLA, had given a contract to kill the deceased, due to political rivalry. It is alleged that, the accused Chhabil Patel, Jayanati Thakkar and the present applicant- Manisha Goswami have hatched a conspiracy with the Page 2 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 help of co-accused namely Sujit Bhau, Vishal Kamle and Nitin Thorat to eliminate the deceased. The accused Chhabil Patel and Jayanti Thakkar had extended financial support and participated in the alleged conspiracy at each and every stage. The applicant Manisha Goswami was closely associated with the co-accused Sujit Bhau. Co-accused Sujit Bhau had actively participated in commission of alleged offence by providing manpower and services of professional shooters namely Shashikant @ Bitiyadada, Ashraf Shaikh and Raju Dhotre. It is case of the prosecution that, at the instance of present applicant, the co- accused Sujit Bhau had actively participated in the alleged offence and had remained present in each and every meeting organized by the principal accused Chhabil Patel at various places. According to the case of prosecution, before the incident, the applicant was close aid of deceased Jayantibhai Bhanushali, who had extended support either financially or socially to settle in the society. After entry of the Chhabil Patel in the ruling BJP party, the differences between deceased and present applicant cropped up as she wanted more amount from the deceased to develop farm business, for which deceased did not agree to extend financial support. The attempt was made by both the parties to malign their reputation in the society by filing FIRs under different sections of Indian Penal Code and finally compromise arrived at between them. However, it is alleged that, at the instance of accused Chhabil Patel and Jayanti Thakkar, the applicant herein along with Sujit Bhau and made a plan to eliminate him at Jharkhand at Rachi, but somehow, they could not succeed in their plan and finally after holding various meetings at Ahmedabad as well as Kachchh-Bhuj, conspiracy had been hatched to eliminate the deceased. The sharpshooters Page 3 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 namely Shashikant Kamle, Ashraf Shaikh and Raju Dhotre had executed the murder of the deceased and before they could execute the murder, raiki was done with the help of present applicant and co-accused. It is further alleged that, in order to execute the plan, the applicant along with co-accused Sujit Bhau left Bhuj city on 05.01.2019 and selected a different route instead of usual route and the map of the route was forwarded to co- accused Chhabil Patel and shooter Shashikant Kamle, so that the same can be used to run away after commission of the offence and thereafter, she along with co-accused Sujit Pardeshi and Nikhil Thorat left Ahmedabad and stayed at Highway hotel, situated on Pune - Goa road and they were run for a long time. Lastly, they were arrested on 04.11.2019.
8. In the aforesaid facts, it is the case of the prosecution that, due to animosity with the deceased, the applicant Manisha Goswami, her close aid Sujit Bhau and others joined hands with Chhabil Patel and Jayanti Thakkar who having political rivalry had agreed to eliminate the deceased and in furtherance of criminal conspiracy, she had actively participated at each and every stage of the conspiracy, as a result of which, she has been apprehended in the alleged offence and finally chargesheeted for the offence as referred above.
9. Mr. Zubin Bharda, learned counsel appearing for the applicant submitted that, the applicant has been falsely implicated in the alleged offence as prior to the incident, all the disputes with the deceased were amicably settled and each of the parties had withdrawn criminal proceedings and dispute with regard to farm and its loan were also settled and compromised. Thus, the question does not arise to take revenge against the Page 4 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 deceased and joined hands with the co-accused. He further submits that the applicant was not present at the spot of the incident; that, there is no direct evidence or indirect involvement of the applicant in the alleged offence; that, so far role attributed to the applicant is concerned, the entire prosecution case rests on circumstantial evidence; that, no recovery or discovery of any weapon or article which connects the offence has been made from the applicant; that, there is no evidence either direct or in form of circumstantial evidence like recovery and/or discovery, CDR analysis report etc. to connect the applicant in the alleged offence; that there is no legally admissible evidence to show that the applicant was a party to criminal conspiracy and there was an agreement between the persons who have alleged to conspire to eliminate the deceased; that, she has been apprehended on suspicion and even after filing of chargesheet, no incriminating material found against the applicant; that merely for some period, the applicant was absconding would not itself to be treated as circumstance sufficient to raise inference against the applicant herein.
10. In view of the aforesaid contentions, learned counsel for the applicant Mr. Bharda submitted that the prosecution has failed to establish a prima facie case against the applicant and as such there is no any evidence in form of circumstantial evidence to connect her in the alleged offence and therefore, merely the applicant has been charged with serious offence would not be a ground to reject the bail application. Relying on the judgment of Sanjay Chandra Vs. CBI, [(2012) 1 SCC 40], he would urge that right to bail is not to be denied merely because of seriousness of the offence. The applicant being a lady accused is in custody since 04.11.2019 and having responsibility to feed her minor Page 5 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 sons. The elder son is suffering from mental illness and except the applicant, nobody is there to look after his critical illness. The trial would take considerable time and there is no possibility to conclude it in near future. The co-accused Jayanti Thakkar has been granted bail on medical ground. If bail is granted, there is no possibility that she would misuse her liberty and being a permanent resident of Vapi, she will not flee from justice.
11. In such circumstances, learned counsel Mr. Bharda prays that judicial discretion may kindly be exercised by imposing appropriate conditions.
12. On the other hand, learned Senior Counsel Mr. N.D. Nanavaty assisted by ld. counsel Mr. Chandrani and ld. Public Prosecutor Mr. Mitesh Amin assisted by learned APP Mr. Manan Mehta for the State vehemently opposed the bail application and contended that there is prima facie evidence against the applicant to believe that she has committed the offence alleged as with all intention, she was part of conspiracy hatched by the co-accused and to execute the same, she had actively participated at each and every stage and remained present in the meetings organized by accused Chhabil Patel and others at various places; that, she was the instrumental in introducing Sujit Pardeshi to the principal accused; Sujit Pardeshi introduced the sharpshooters to Chhabil Patel and others; that, earlier it was planned to eliminate the deceased at Ranchi, Jharkhand and she along with Sujit Pardeshi had accompanied Chhabil Patel and others at Delhi, Ranchi and other places. She had a motive and grudge against the deceased as the deceased did not extend help in developing farm business and thereafter, differences cropped-up between them; that, there is a sufficient evidence Page 6 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 collected during the course of investigation to establish her knowledge with regard to alleged conspiracy and its execution; that after the incident, she along with co-accused Nikhil Khorat and Sujit Bhau left the territory of Gujarat and switched off their mobile phones and reached at Pune Goa highway road where they stayed at hotel and the car used for travelling was kept in the garage of third person and thereafter, they were on run and travelled at different places like Dhulia, Ujjain, Delhi, Amritsar, Haridwar, Rishikesh, Katra - Jammu, Chitrakut, Banaras and Prayagraj; that, the court of Bhachau had issued warrants against them under Section 70 of Cr.P.C; that, more than 300 days i.e. from 08.1.2019 to 04.11.2019, they remained at large and had evaded their arrest and whenever they stayed at Hotel, the accused Manisha and Sujit Pardeshi introduced themselves as husband wife; that, accused Sujit Bhau who had introduced the sharpshooters and had played vital role in the offence, giving him a company for about 300 days would itself establish the involvement of the present applicant.
13. In the aforesaid contentions, learned Senior Counsel appearing for the complainant would submit that, there is sufficient grounds to believe that the applicant accused was part of criminal conspiracy hatched by the principal accused and in order to execute the same, she conspired to eliminate the deceased and therefore, the offence of murder is serious one and considering the interest of the society, she may not be granted bail as prayed for. He would further urge that, if the applicant is released on bail, she will try her level best to interfere with the due course of trial and therefore, possibility cannot be ruled out that there is reasonable apprehension of the witnesses being influenced. Lastly, he submitted that, the principle of parity would Page 7 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 never apply to the case of the applicant and considering the past record of the applicant, no case is made out to exercise discretion in favour of the applicant.
14. I have considered rival submissions addressed before this court. Perused the chargesheet case papers and have considered the affidavit of complainant.
15. Having regard to the facts and circumstances of the present case and having gone through the material placed on record, this Court is of considered view that there is reasonable ground to believe that accused has committed the offence. So far role of the applicant is concerned, it is alleged that she conspired with the common object to eliminate the deceased. The motive can be inferred from the chargesheet papers that in past, there were serious differences between the deceased and present applicant. The principal accused had political rivalry and grudge against the deceased. Thus, prima facie it appears that two rival groups have joined hands in elimination of the deceased. This Court is of conscious about the law on the subject criminal conspiracy. A conspiracy ordinarily hatched in secrecy. The Court for purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne out in the mind that meeting of mind is essential; mere discussion or knowledge is not sufficient and therefore, it cannot be established by mere a proof of association of person with the accused nor by evidence raising a mere suspicion of guilt.
16. On the case on hand, after analysis of the statement of the witnesses and material collected during the course of Page 8 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 investigation, there is sufficient evidence collected against the applicant herein to establish her involvement in the alleged offence. Thus, prima facie, it appears that prior to the incident she along with the co-accused Sujit Pardeshi were joined hands with co-accused Chhabil Patel and with their common object, they had participated in various meetings at different places and prior to the incident, it was planned to eliminate the deceased at Jharkhand - Rachi and there is sufficient evidence to infer that she was very much there at different places with the co-accused. Prior to the incident, she had actively participated in drawing the map to give proper direction to the sharpshooters. After the incident, she along with Sujit Pardeshi and Nikhil Thorat, left Ahmedabad and stayed at different places as pointed out by the counsel for the original informant and she was on run for more than 300 days and throughout she was in company of accused Sujit Bhau and introduced themselves as husband & wife.
17. In view of the above, determination of whether a case is fit for grant of bail, involves the balancing of numerous factors amongst which the nature of the offence, severity of punishment and prima facie view of the involvement of the accused are important and there is no straitjacket formula to assess the application for grant or rejection of bail and one of the relevant consideration for grant of bail is the interest of the society at large.
18. In light of settled principles of grant or rejection of bail and considering the peculiar facts and circumstances of the present case, role attributed to the applicant and evidence in support of charge, this Court finds that the circumstances as discussed hereinabove show the complicity of the applicant in the crime Page 9 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023 R/CR.MA/5034/2022 ORDER DATED: 07/03/2023 and at this stage, Court should not go into merits of the case by appreciation of evidence. The contentions raised by learned counsel for the applicant would require to be considered and appreciated at the time of recording the evidence by the trial Court and court cannot comment upon the nature of evidence at the stage of granting bail as any expression of opinion would affect the trial as well as cause prejudice to the right of either of the parties. The contentions raised by original informant that there is possibility of the accused tempering with the evidence having some substance as considering the past record of the applicant, possibility to influence the witnesses cannot be ruled out.
19. For the foregoing reasons, without further discussions on merits of the case, no grounds are, therefore, found to grant bail to the applicant. Thus, application stands dismissed. Nothing in this order shall tantamount to the findings of the merits of the case. Rule is discharged.
(ILESH J. VORA,J) SUCHIT Page 10 of 10 Downloaded on : Fri Mar 10 20:39:24 IST 2023