NEUTRAL CITATION
R/CR.MA/18062/2023 ORDER DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 18062 of 2023
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SATAR GODBHAI SAMA
Versus
STATE OF GUJARAT
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Appearance:
MS AISHWARYA H CHAUDHARY(11539) for the Applicant(s) No. 1,2,3,4
MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 09/10/2023
ORAL ORDER
1. This is an application at the instance of the applicants- accused praying for regular bail in connection with the First Information Report being C.R.No.11205042230505 of 2023 registered with the Bhuj 'A' Division Police Station, District: Kachchh for the offence punishable under Sections 302, 307, 325, 323, 324, 143, 147, 148, 149, 120B of the Indian Penal Code as well as Section 135 of the Gujarat Police Act.
2. The case of the prosecution may be summarized as under;
2.1 On 21.06.2023, at around 4:00 p.m., when the complainant reached his house from his work, he found that his nephew Mustak Sama and his neighbour Juma Alana Sama were waiting for him at his home. When he asked them about the reason for being there, Juma Alana Sama told the Page 1 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined complainant that about two days ago, his family members made an attack on one Taiyab Ibrahim in Nana Dinara, due to which, a criminal complaint had also been lodged with the concerned police station. Therefore, keeping grudge of the same, the people of Taiyab Sama are searching for him to take revenge and, therefore, he has come to the house of the complainant to take shelter for few days. The complainant agreed to let him stay at his house.
2.2 It is alleged that thereafter, when they were sitting at his house, they saw that two cars reached outside his house, i.e, one i-20 and Scorpio and some persons, namely, Sattar Godbhai Sama, Amir Hasan God Sama, Mamtaz Taiyab Sama, Mukin Taiyab Sama, Majid Musa Sama, Musa Hasan Sama, Harun Sama and Amin Siddiq Sama came out from the said cars.
2.3 The said persons, namely, Sattar Godbhai Sama was having an Axe in his hand, Amir Hasan God Sama was having a wooden log in his hand, Mamtaz Taiyab Sama was having a knife in his hand, Mukin Taiyab Sama was having a wooden log in his hand, Majid Musa Sama was having an Axe in his hand, Musa Hasan Sama was having a Dhariya in his hand, Haraun Sama was having a wooden log in his hand and Amin Siddiq Sama also having a wooden log in his hand.
2.4 All the aforesaid persons, thereafter, proceeded towards the Juma Alana Sama with the above stated weapons in their hands and tried to make an attack on Juma Alana Sama. Therefore, the complainant tried to intervene, however, one of the aforesaid persons made an attack on him with a wooden Page 2 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined stick due to which he fell down.
2.5 Thereafter, the said persons made an attack upon Juma Alana Sama with the weapons on their hands, due to which, he also fell down and thereafter all the aforesaid persons ran away from the scene of offence.
2.6 Thereafter, when the nephew of the complainant, namely, Mustak Sama reached to the scene of offence, he found the complainant and Juma Alana Sama lying there on the floor screaming for help and, therefore, they were taken to the hospital for treatment. Thereafter, the FIR came to be lodged.
3. Learned senior advocate Mr. Yatin Oza with learned advocate Ms. Aishwarya H. Chaudhary has submitted that the complaint has been registered on 21st June, 2023 and the present applicants-accused came to be arrested on 22 nd June, 2023 and since then they are in judicial custody. Learned senior advocate Mr. Oza has also submitted that now the investigation has already been completed and the charge- sheet has also been filed by the Investigating Officer before the competent jurisdictional court. Learned senior advocate Mr. Oza has further submitted that it is stated in the complaint that total eight persons have made an attack upon the deceased with sharp objects, but the medical evidence is quite contrary. It is stated in the medical papers that the deceased has sustained total four injuries which may be caused by hard and blunt weapon and, therefore, by no stretch of imagination, it can be said that those injuries could have been caused by sharp and pointed instruments. The said fact is also found out from the PM report. The deceased has not sustained any Page 3 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined incise, cut or stab wounds that would result from any sharp objects.
4. Learned senior advocate Mr. Oza has further submitted that the copy of the MLC certificate is produced along with memo of the petition, wherein the injuries are described by the concerned medical officer which clearly goes on to show that the injuries were simple in nature and the period of recovery would be around 10 to 12 days. Learned senior advocate Mr. Oza has also submitted that in the MLC certificate, the doctor has specifically observed that there were only four injuries visible on the body and all of them appeared to have been caused by hard and blunt object, whereas the case of the prosecution is that the deceased was attacked by the accused with sharp weapons like Knife, Axe, Dhariya etc. and, therefore, the documents available on record creates doubt upon the version of the complainant. Learned senior advocate Mr. Oza has submitted that if the version of the complainant is taken its face value, in that event, there were eight persons who had actively participated in the commission of the offence and made an attack upon the deceased with sharp weapons, however, the said version appears to be quite contrary with the medical evidence available on record. Learned senior advocate Mr. Oza has further submitted that the complainant and the accused persons were known to each other and the deceased has not given the name of the attackers before the doctor at the time of giving history. It is stated in the history that the deceased had been assaulted by nine to ten persons with Dhoka and sharp weapons as mentioned in the MLC certificate.
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5. Learned senior advocate Mr. Oza has also submitted that the deceased has given the history before the doctor stating that the so called incident took place at Nana Dinara village, whereas in the first information report, it is stated that the assault took place at village Nana Dinara and the injured was immediately taken to the Government Hospital at Bhuj and the distance between Nana Dinara and Bhuj is more than 80 kms and, therefore, the story put forward by the prosecution is not palatable. Learned senior advocate Mr. Oza has submitted that recently a trend is developed that at the time of registering the complaint, all the members of the family are being arraigned as the accused with a sole intention to wreck vengeance against the rival party and the said fact is also reflected from the present case that the complainant in the complaint has alleged that the accused No.4 has also played an active role in the commission of the crime whereas the Investigating Officer has not filed charge-sheet against him and report under Section 169 of the Cr.P.C has been submitted specifically stating that plea of alibi of the accused No.2 is correct one as at the time of the said incident, he was, at all, not available at the place of offence as he was at the Accord Hospital at Bhuj where his father was being treated. Learned senior advocate Mr. Oza has further submitted that as per the case of the prosecution, the presence of the applicants-accused at the place of offence is found out from the CCTV footage, however, in the said CCTV footage, faces of the persons cannot be seen. The CCTV footage only shows the legs of some people and only on the basis of the said CCTV footage, it cannot be said that the persons who are seen in the CCTV footage are the present applicants-accused and, therefore, it can be said that the CCTV Page 5 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined footage fails to prove the present of the present applicants- accused at the place of offence.
6. Learned senior advocate Mr. Oza, in support of his submissions, has put reliance upon the following orders passed by a Coordinate Bench of this Court;
1) In the case of Raval Balubhai Kantibhai vs. State of Gujarat, Criminal Misc. Application No.5025 of 2016;
2) In the case of Subhamsingh Udaysingh Ramsingh Rajput vs. State of Gujarat, Criminal Misc. Application No.7147 of 2023;
3) In the case of Ajay @ Fulli S/o. Manikchand Saroj vs. State of Gujarat, Criminal Misc. Application No.1616 of 2023;
7. In such circumstances, referred to above, learned senior advocate Mr. Oza prays that there being merit in this application the same be allowed and the applicants-accused may be enlarged on bail on any suitable terms and conditions.
8. On the other hand, this application has been vehemently opposed by learned APP Mr.Hardik Soni appearing for the State. Learned APP Mr. Soni has submitted that the complaint has been registered against the present applicants-accused wherein their names and roles have been described in a very crystalized manner. Not only that, pursuant to registration of the complaint, investigation was commenced and the concerned Investigating Officer has submitted the charge- sheet against the accused persons after thoroughly collecting Page 6 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined evidence against the present applicants-accused. Learned APP Mr. Soni has further submitted that there was enmity between the complainant side and the present applicants-accused and due to that inimical terms, the accused persons had made an assault upon the members of the complainant by entering into their house with deadly weapons. Learned APP Mr. Soni has also submitted that the accused persons came in two vehicles with deadly weapons and the said fact can be found out from the CCTV footage. Learned APP Mr. Soni has submitted that it is true that CCTV camera was not available at the place of offence, however, the footage of the CCTV camera found to be installed outside the residence of one Nawab Harun Traya clearly shows the entry and exit of the present applicant- accused from the house of the complainant. Learned APP Mr. Soni has put reliance upon the injuries mentioned in the PM report and submitted that there are total ten injuries on the body of the deceased and the stitched would are found upon the body of the deceased and at this juncture, on the basis of the stitched wound, it cannot be decided that whether those injuries have been caused either by sharp cutting instrument or the blunt instrument. Learned APP Mr. Soni has submitted that considering the role attributed to the present applicants- accused which is evident from the first information report and the statements of the witnesses as also the fact that the said incident is witnessed by one injured person and the complainant, a clear cut case is made out against the present applicants-accused that they have played an active role in the commission of the crime, due to which, an innocent person has lost his life and, therefore, this Court may not exercise its discretion in favour of the applicants-accused by releasing the Page 7 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined applicants-accused on bail.
9. Learned advocate Mr. Kirtidev R. Dave appearing for the complainant has submitted that there was long standing dispute between the complainant and the accused persons and one complaint came to be registered under Section 307 of the Indian Penal Code against the complainant and other persons by the applicants-accused in respect of the quarrel took place between them just two days ago from the date of the incident and due to such inimical terms and rivalry, the accused persons had come to the house of the deceased at village Nana Dinara from their village in two cars along with deadly weapons and the said facts is clearly established from the compilation of the charge-sheet papers. The distance between house of the complainant and the house of the accused is about 70 kms and, therefore, it can safely be said that the accused persons have hatched a criminal conspiracy to eliminate one of the family members of the complainant and with the premeditated mind, they have come and committed the present offence. Learned advocate Mr. Dave has further submitted that the said incident is witnessed by the complainant as well as one injured person and they have very categorically described the role of each of the accused in their statements.
10. Learned advocate Mr. Dave has submitted that immediately the deceased was taken to the hospital for the purpose of treatment where primary treatment was given to him, and at that point of time, the concerned medical officer has noticed four injuries on the body of the deceased which Page 8 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined were caused by blunt and hard weapons. After two days treatment, the deceased succumbed to the injuries. The Doctor who had prepared the postmortem report has mentioned that there are in all ten injuries on the vital part of the body of the deceased which are severe in nature. The selection of the body parts at the time of inflicting blows to the deceased clearly goes on to show that the accused persons had come with premeditated mind and with a sole intention to commit murder of one of the family members of the complainant and, therefore, it is prayed that the present application be rejected and the applicants-accused may not be enlarged on bail.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether discretion should be exercised in favour of the applicants herein.
12. Before coming to the rival contentions of the parties, let me give a brief background of the prosecution case.
13. It is found out from the record that investigation has already been completed and the charge-sheet has also been filed by the Investigating Officer before the competent court and the present application has been preferred after filing of the charge-sheet. It is also found out that on 21 st June, 2023, the applicants-accused went to the house of the complainant armed with deadly weapons like axe, knife, wooden log etc. and made an attack upon the complainant and deceased Juma Alana Sama and thereby caused serious injuries to the deceased Juma Alana Sama. Therefore, deceased was Page 9 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined immediately taken to the hospital for treatment and after primary treatment, as per the MLC certificate, the injuries are simple in nature and could have been caused by hard and blunt object. The injuries are in the nature of CLW, Lacretion, pain & swelling & tenderness and bleeding and the period of recovery of those injuries as mentioned in the MLC certificate is 12 to 15 days. Thereafter, the deceased succumbed to the said injuries. It appears from the postmortem report that the deceased died due to cardiac respiratory failure due to injuries on the body. There are in all ten injuries found on the body of the deceased. The Investigating Officer, during the course of investigation, has also collected one CD containing the CCTV footage. It is submitted by the learned APP that as per the CCTV footage, the accused persons had come in two different cars and parked the same outside the house of the complainant. Thereafter, they had entered into the house of the complainant with deadly weapons and after some period of time, once again, they came back and left the place in their cars. The said incident is witnessed by the complainant as well as one injured person who were very much available at the place of offence. They have described the sequence of events of the incident in a very categorically manner in their statements. The specific role played by the present applicants-accused is clearly established from the version of the complaint and the statements of the witnesses and prima facie it seems that those are corroborating with each other. Therefore, on the strength of the materials available on record, in my view, there appears to be an active participation and involvement of the present applicants accused in the commission of the present offence.
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14. Learned senior advocate Mr. Oza has put reliance upon certain orders passed by the Coordinate Bench of this Court so far as the use of the weapons are the time of commission of the offence are concerned. The facts of those decisions are quite dissimilar to the case on hand. It is specifically stated by the deceased before the doctor that he was beaten by the present applicants-accused with hard and blunt weapons like Dhoka etc. Therefore, the principles enunciated in the decisions relied upon by learned senior advocate Mr. Oza are at all not applicable to the case on hand and I am of the clear opinion that prima facie case is made out against the accused persons.
15. The consistent view of the Supreme Court as well as the various High Courts, is that the matters to be considered in a bail application for grant of bail are as follows:
1. Whether there is a, prima facie, reasonable ground to believe that the accused had committed the offence;
2. Nature and gravity of the charge;
3. Severity of punishment in the event of conviction;
4. Danger of accused absconding or fleeing, if released on bail;
5. Character, behavior, means, position and standing of the accused;
6. Likelihood of the offence being repeated;
7. Reasonable apprehension of the witnesses being tampered with;
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8. Danger of course of justice being thwarted by grant of bail;
16. So far as the instant case is concerned, applicants are facing the charge of murder which is punishable with death sentence or imprisonment for life. The Supreme Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another, (2004) 7 SCC 528, while laying down the guidelines for grant or refusal of bail in serious offences like murder, has observed as under:
"11.The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others and Puran Vs. Rambilas and another) Page 12 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined
12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay, supra)"
17. In the aforesaid judgment, the Supreme Court has also observed that the conditions laid down in Section 437(1)(i) of Cr.P.C are sine qua non for granting bail even under Section 439 of the Code, meaning thereby that in a case where a person is alleged to be involved in a offence punishable with death sentence or imprisonment for life, he cannot be released on bail if there appear reasonable grounds for believing that he has been guilty of such an offence. So the applicants in the instant case, in order to succeed in making out a case for grant of bail in their favour on merits, have to satisfy this Court that on the basis of the evidence led by the prosecution and the evidence that is proposed to be led by the prosecution, there is absence of reasonable grounds for believing that he has committed the offence.
18. Section 439 of the Cr.P.C is the guiding principle for adjudicating a Regular Bail Application wherein Court has to take into consideration several aspects. The jurisdiction to grant bail has to be exercised cautiously on the basis of well- settled principles having regard to the facts and circumstances of each case.
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19. In Prahlad Singh Bhati Vs. NCT of Delhi And Another, reported in (2001) 4 SCC 280 , a two-Judge Bench of the Supreme Court has stated the principles which are to be considered while granting bail which are as follows : -
"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
20. In Ram Govind Upadhyay Vs. Sudarshan Singh, reported in (2002) 3 SCC 598, the Hon'ble Apex Court has observed thus;
"3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained.
Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being Page 14 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter."
21. The Hon'ble Supreme Court in Mahipal Vs. Rajesh Kumar Alias Polia And Another, (2020) 2 SCC 118 has observed as under :-
"14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive Page 15 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023 NEUTRAL CITATION R/CR.MA/18062/2023 ORDER DATED: 09/10/2023 undefined finding."
22. There is yet another aspect of this case which is required to be noticed. Earlier the bail application of the applicants was dismissed by learned trial court on 22.09.2023 and only a few days thereafter, the applicants rushed to this Court by way of instant application without there being any change of circumstances. I am conscious of the fact that the High Court, being a superior and Constitutional Court, has unfettered powers to entertain an application for grant of bail of an accused whose bail application has been rejected by an inferior Court but then there has to be some fresh grounds before the High Court to persuade it to take a view different from the one taken by the trial court. In the instant case, learned counsel for the applicants has not urged any such ground that would persuade this Court to take a view different from the one taken by the learned trial court. In fact, the order of trial court is well- reasoned and lucid and this Court does not find any ground to take a different view.
23. For the forgoing reasons, I do not find any merit in this application and the same is, accordingly, dismissed.
(DIVYESH A. JOSHI,J) VAHID Page 16 of 16 Downloaded on : Wed Oct 11 20:40:01 IST 2023