NEUTRAL CITATION
R/CR.A/2381/2023 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
2381 of 2023
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VIKRAMBHAI BHIKHUBHAI KHACHAR
Versus
STATE OF GUJARAT
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Appearance:
MR.SANAT B PANDYA(6976) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/11/2023
ORAL ORDER
1. By way of present appeal under Section 14A of the Prevention of Atrocities Act read with Section 439 of Cr.P.C, the appellant accused has prayed to release him on regular bail in connection with the FIR being C.R. No.11211010230097 of 2023 registered with Chuda Police Station, Surendranagar, for the offences punishable under Sections 302, 396, 307, 326, 325, 335, 504, 506(2), 427, 120B. 201, 143, 147, 148 and 149 of Indian Penal Code, 1860, Section 135 of the G.P.Act and Sections 3(1)(r), 3(1)(s), 3(2)(v), 3(1)(g) and 3(1)(f) of the Atrocities Act.
2. It is the case of the prosecution that the complainant having ancestral property and the accused persons with a view to grab the property, used to give threats to the complainant and other witnesses and by keeping the grudge, the accused persons Page 1 of 8 Downloaded on : Fri Nov 10 20:55:19 IST 2023 NEUTRAL CITATION R/CR.A/2381/2023 ORDER DATED: 08/11/2023 undefined including the appellant formed an unlawful assembly and by hatching conspiracy, made an assault with deadly weapons and committed murder.
3. Learned counsel for the appellant submitted that the present appellant is not named in the FIR and has falsely been arraigned as an accused due to differences between the families of the complainant and accused persons. The dispute was with regard to the ancestral land. Even no specific allegation, which involves the appellant in the alleged offence is there. Investigation is over and chargesheet has already been filed. Nothing is required to be recovered from the appellant. He also submitted that, the complaint is filed with an ulterior motive and the appellant is having deep roots in the society and if he is not released on bail, his life will be ruined. He submitted that the appellant has no past antecedent. As the chargesheet has been filed, Mr. Pandya has relied on the judgment rendered by the Apex Court in the case of Sanjay Chandra Vs. CBI, reported in (2012) 1 SCC 40 and stated that basic view of bail is to ensure the presence of the accused in trial and therefore, the appellant may be granted bail.
Mr. Pandya further submits that, the appellant is in custody since 19.07.2023 and in such circumstance, further custody of the appellant would not yield any fruitful purpose. In view of the same, he has prayed to allow the present appeal and enlarge the appellant Page 2 of 8 Downloaded on : Fri Nov 10 20:55:19 IST 2023 NEUTRAL CITATION R/CR.A/2381/2023 ORDER DATED: 08/11/2023 undefined on bail.
4. Per contra, learned APP has vehemently opposed the appeal and stated that the present appellant was a member of unlawful assembly and by hatching criminal conspiracy, made an assault with deadly weapon. Nonetheless, in the said offence, two innocent persons have lost their lives and three persons sustained injuries. Test Identification parade is conducted in which the present appellant is identified. Considering the role and conduct of the appellant, this is not a fit case to exercise discretion in favour of the appellant. She also submitted that, as the appellant has destroyed the evidence from mobile phone, which was retrieved later on by the investigating agency and FSL report is also confirmed that the appellant has tampered the mobile phone. She also submitted that, from the record, it clearly establishes that the appellant had called accused persons to gather at one place and as a preplan, they attacked on the complainant and witnesses with deadly weapons. It is also submitted that the appellant is facing serious charge of murder and therefore, considering the gravity of offence and severity of punishment, no case is made out. Hence, she requested to dismiss the present appeal.
5. Learned counsel appearing for the original complainant has adopted the arguments made by learned APP and opposed the bail application by contending that, the appellant is head strong person Page 3 of 8 Downloaded on : Fri Nov 10 20:55:19 IST 2023 NEUTRAL CITATION R/CR.A/2381/2023 ORDER DATED: 08/11/2023 undefined and if he is released on bail, there is potentiality to breach the public tranquility. In such circumstances, he prays that the application may not be entertained.
6. Considering the arguments canvassed by learned counsel for the respective parties and material placed on record, it appears that the complainant, deceased and witnesses are having ancestral land and as the accused persons wanted to grab the said land, threatened them and by keeping the grudge, they formed an unlawful assembly at one place and then made an assault with deadly weapons, in which, two real brothers were killed. Further, from the TI parade, it reveals that the appellant was present in the offence having stick with iron ring and he also made an assault. It is proved that the accused being members of the unlawful assembly with common object to snatch the possession of the land, made an assault with deadly weapons. It is also to be noted that presence of the appellant was very much found at two places i.e. at village Sudamada where the appellant had called other accused persons and thereby, they assembled near one Tyre puncture shop and then, they proceeded towards village Samadhiyala, where all the accused persons formed an unlawful assembly and attacked on the complainant and witnesses by deadly weapons, in which, two persons were killed and many witnesses got injured.
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7. Further, the witnesses have supported the case of the prosecution and also stated that the accused persons also committed an offence of robbery and thereby, the appellant accused is also facing charge of Section 396 of Indian Penal Code, 1860. It is needles to say hat in a case of conspiracy, hardly direct evidence would be available and it also may be inferred from the materials collected during the investigation. The I.O has also collected CDR, from which location of the appellant was found with the accused persons at the scene of offence. Thereby, considering the case of the prosecution and material placed on record, it is crystal clear that the accused formed an unlawful assembly and then reached to the spot and though they very well known that the complainant and witnesses belong to Scheduled castes/Scheduled tribes, first they made an assault and then sprinkled chilly powder in the eyes of witness Nandiniben. Thereby, it prima facie reveals that the appellant has played an active role.
8. Learned counsel for the appellant has argued that the chargesheet is filed and appellant may be released on bail. In this context, it needs to be mentioned that nonetheless, after filing of the chargesheet, it strengthens the case of the prosecution. Reference is made to the decision of the Apex Court in the case of Virupakshappa Gouda & Anr. Vs. The State of Karnataka & Anr. reported in 2017 (5) SCC 406 and Navin Singh Vs. State of Page 5 of 8 Downloaded on : Fri Nov 10 20:55:19 IST 2023 NEUTRAL CITATION R/CR.A/2381/2023 ORDER DATED: 08/11/2023 undefined U.P. reported in 2021 (2) SCC (Cri.) 809 as filing of chargesheet does not any manner lesser the allegation, but filing of chargesheet is only a cosmetic change. The appellant is facing serious charge of murder. If in a case, there is a grave charge and looking to the severity of punishment, the Court may not exercise its discretion in favour of the accused.
9. So far as subsequent progress in the present case is concerned, some of the material witnesses are yet to be examined and also the case is based on circumstantial evidence. Learned Presiding Judge has also noted demeanor of witness also. While granting bail, one of the criteria is interest of the prosecution is to tempering with evidence is an important aspect, which is required to be considered.
10. In this regard, the Sessions Court has to take appropriate call and endeavour to expedite the trial. Merely recording the deposition of witnesses is not a ground to allow the appeal and at the time of deciding bail application, the Court should not blindly rely upon the precedent as held by the Apex Court as each case should be decided on its own merits and the Court has to consider the facts of each case and in the instant case, prima facie offence is proved against the accused. Further, at the time of deciding bail application, appreciation of the evidence is not permissible and it is very premature stage to appreciate the evidence.
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11. Here in the instant case, the appellant is facing charge of Sections 302, 307, 396 of IPC etc. of IPC of the Indian Penal Code as well as the Atrocities Act. In view of the above, tempering the evidence, there is no case of vicarious liability and the common intention is there and at this stage, detailed examination of evidence is not permissible.
12. The Hon'ble Supreme Court has observed in the case of Ram Govind Upadhyay vs. Sudarshan reported in 2002 (3) SCC 598 held that, "the accused has right to make successive application for grant of bail, but while entertaining a subsequent bail application, it is the duty of Court to consider the reasons and grounds, which persuade to take a view different from the one taken in the earlier application".
From the record, it appears that the appellant has inflicted the stick blows to the deceased and witnesses, as a result of which, the deceased received serious injuries and died. Thus, the charge levelled against the appellant is very serious in nature and offence is punishable with life imprisonment or death and earlier applications before chargesheet have been rejected.
13. In this background fact, this Court prima facie is of view that the appellant along with other accused with an intent to commit Page 7 of 8 Downloaded on : Fri Nov 10 20:55:19 IST 2023 NEUTRAL CITATION R/CR.A/2381/2023 ORDER DATED: 08/11/2023 undefined murder of the deceased, formed an unlawful assembly and assaulted with deadly weapons and thereby, caused serious injuries and committed murder. Considering the same, it cannot be said that the appellant herein has been falsely implicated in the alleged offence.
14. For the foregoing reasons, this Court is of view that it is not a fit case to exercise discretion under Section 14-A of the Atrocities Act as well as under Section 439 of Cr.P.C. in favour of the appellant. Learned Sessions Judge has not committed any error in dismissing the bail application. In view of the above, no case is made out for bail. Accordingly, present appeal does not deserve any consideration and is hereby dismissed. However, the trial Court concerned shall make an endevour in expeditious disposal of the trial. It is made clear that this Court has not delve into the merits of the matter and the views expressed in the order are prima facie only.
(HASMUKH D. SUTHAR,J) SUCHIT Page 8 of 8 Downloaded on : Fri Nov 10 20:55:19 IST 2023