Vishnubhai Jagdishbhai Sodha ... vs State Of Gujarat

                                                                            NEUTRAL CITATION




    R/CR.A/1395/2023                         ORDER DATED: 14/09/2023

                                                                            undefined




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL APPEAL NO. 1395 of 2023
==========================================================
             VISHNUBHAI JAGDISHBHAI SODHA PARMAR
                               Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR A S TIMBALIA(7372) for the Appellant(s) No. 1
MR     LB    DABHI,     ADDL.PUBLIC        PROSECUTOR     for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED BY DS for the Opponent(s)/Respondent(s) No. 2
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                        Date : 14/09/2023
                         ORAL ORDER

[1.0] Present appeal under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") challenging the judgment and order dated 01.04.2023 passed by the learned Principal District & Sessions Judge, Kheda, at Nadiad in Criminal Misc. Application No.563 of 2023 whereby the learned Sessions Judge rejected the application filed by the present appellant under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR being C.R. No.11204041230259 of 2023 registered with Mahemdabad Police Station, District Kheda for the offences punishable under Sections 143, 147, 148, 149, 302 and 114 of the Indian Penal Code, 1860 and section 3(2)(5-a) of the Atrocity Act.

[2.0] Though served, respondent No.2 has chosen not to appear before this Court.

NEUTRAL CITATION R/CR.A/1395/2023 ORDER DATED: 14/09/2023 undefined [3.0] Learned advocate Mr. A.S. Timbalia for the appellant submitted that the appellant is not involved in the commission of offence as alleged in the FIR and has been falsely enroped in the offence. There is no direct evidence which can connect the present appellant with the offence. There is no eye-witness or any evidence to connect the present appellant with the alleged offence and the allegation leveled against the present appellant is that he has made an assault on the deceased with scythe (dhariya) but there is no incriminating material which can connect the present appellant with the offence. Further, investigation is over and the case is based on circumstantial evidence. The appellant is not named in the FIR and the appellant is behind the bars since 21.03.2023 and till date he has cooperated in investigation. Further, there is no possibility of appellant fleeing from justice as he is the sole bread-winner of his family. It is further submitted that even if the entire story of prosecution is accepted as it is then also there was no malafide intention or pre- meditation for commission of crime and even if it is believed that an offence has been committed then also it was either for self- defence or for the protection of property. There was no previous enmity or any identity of the deceased as he belongs to either scheduled caste or scheduled tribe and therefore, the appellant is required to be enlarged on regular bail by imposing suitable terms and conditions.

[4.0] Per contra, learned APP appearing for the respondent - State has vehemently opposed the present appeal and stated that alleged offence is a serious offence. There are two witnesses Page 2 of 5 Downloaded on : Sat Sep 16 17:12:11 IST 2023 NEUTRAL CITATION R/CR.A/1395/2023 ORDER DATED: 14/09/2023 undefined who have supported the case of prosecution and stated that accused was found with weapon and at the instance of accused weapon and rope used in the commission of offence were recovered. Considering prima facie material and the gravity of offence, he has requested to dismiss the present appeal.

[5.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides.

The FIR is filed against unknown persons wherein it is alleged that accused persons were members of an unlawful assembly and by using the deadly weapon they had assaulted the deceased. The FIR is registered on 20.03.2023 wherein it is alleged that a mob of 6 to 7 persons made an assault. Except this, no any fact is revealed. From the investigation papers it reveals that the accused persons were under impression that the deceased was a thief and he was found at the premises of accused No.1 and at that time he shouted and people gathered with deadly weapons and they had chased the deceased and then made an assault upon the deceased and he died. Prima facie, it appears that the offence is committed due which the deceased died however, so far as incriminating evidence is concerned, except extrajudicial confession of present accused, no any evidence is found on the record. Even there is no scientific evidence like blood stain on weapon or cloths which can connect the present appellant with the offence. It is needless to say that extrajudicial confession is a weak piece of evidence and it appears that there is no pre-meditation. Even considering the Page 3 of 5 Downloaded on : Sat Sep 16 17:12:11 IST 2023 NEUTRAL CITATION R/CR.A/1395/2023 ORDER DATED: 14/09/2023 undefined fact that co-accused have are already enlarged on bail, on the ground of parity also, in view of the decision of the Hon'ble Supreme Court in the case of Ramesh Batukbhai Dabhi vs. State of Gujarat reported in 2011 (3) GLR 1150, and other circumstances like investigation is over, no possibility of tampering with the evidence and also considering the principle of 'bail is rule jail is exception', present appellant deserves consideration. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40.

[6.0] Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R. No.11204041230259 of 2023 registered with Mahemdabad Police Station, District Kheda on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the 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 the India without prior permission of the concerned trial court;

[e] mark presence before the concerned Police Station Page 4 of 5 Downloaded on : Sat Sep 16 17:12:11 IST 2023 NEUTRAL CITATION R/CR.A/1395/2023 ORDER DATED: 14/09/2023 undefined between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] 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;

[h] shall not take undue advantage of liberty for prolonging the trial by taking unnecessary adjournment;

[7.0] The authorities shall release the appellant only if the appellant 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.

[8.0] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

[9.0] Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR, J.) Ajay Page 5 of 5 Downloaded on : Sat Sep 16 17:12:11 IST 2023