Lakhmanbhai Bijalbhai Makwana vs State Of Gujarat
2021 Latest Caselaw 12393 Guj

R/CR.MA/18854/2020                              CAV JUDGMENT DATED: 25/08/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 18854 of 2020
                                With
            R/CRIMINAL MISC.APPLICATION NO. 18856 of 2020
                                With
            R/CRIMINAL MISC.APPLICATION NO. 18901 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== LAKHMANBHAI BIJALBHAI MAKWANA Versus STATE OF GUJARAT ========================================================== Appearance:

MR PREMAL S RACHH(3297) for the Applicant MR KIRTIDEV R DAVE(3267) for the Orig. Complainant MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent - State ========================================================== CORAM:HONOURABLE MR. JUSTICE S.H.VORA

Date : 25/08/2021

CAV JUDGMENT

1. Present applications are filed u/s 439 of the Code of Criminal Procedure for grant of bail in respect to FIR being C.R. No.11993005200314/2020 registered at Adesar Police Station, Dist: Kutchh - Gandhidham (East) for the offences punishable u/s 143, 147, 148, 149, 341, 384, 120(B), 506(2) of

R/CR.MA/18854/2020 CAV JUDGMENT DATED: 25/08/2021

the IPC, u/s 25(1-b)A, 27 and 29 of the Arms Act and u/s 135 of the G.P. Act.

2. The relevant facts and allegations stated in the FIR, as also in cross FIR registered at the behest of Vishan Koli - accused No.6 being FIR No.11993005200315 at Adesar Police Station can be stated thus:-

2.1 The incident dated 9.5.2020 took place in Hamirpur, which is just at the distance of 20 km of the police station, which led to homicidal killing of five persons had its genesis in a land dispute. According to the informant, he and his brother Pethabhai went to their farm at 6:00 a.m. and at 1:00 p.m., the informant, Pethabhai and his brother-in-law Akhabhai were returning home in his scorpio vehicle with other five persons. As soon as the vehicle reached near the farm of Lakha Koli and Kanji Bijal Koli, Lakhman Bijal dashed his tractor on the front portion of the scorpio vehicle and when Akhabhai tried to take reverse with a view to escape, Kanji Koli parked his tractor on the rear side of the scorpio vehicle, behind which, another sumo vehicle came to be parked by Lakhman Bijal. Thus, the scorpio car and his occupants were cornered and blocked so as to prevent the escape of scorpio car. At that time, the informant and others, out of fear, ran away and they saw the homicidal incident as described in detail in the FIR.

2.2 At this stage, it is relevant to mention gist of the cross FIR of dated 13.5.2020 lodged by one Vishan Koli - accused No.6. The mother of Vishan sold the land bearing survey Nos.734 paiki 1, 732 paiki 2, 742 paiki 2 and 730 to one resident of Jamnagar, who, in turn, gave the said land to

R/CR.MA/18854/2020 CAV JUDGMENT DATED: 25/08/2021

deceased Akhabhai for cultivation purpose and thus, Akhabhai was holding and possessing the said field. As Akhabhai refused to return back the land, there were quarrels. On 7.5.2020, Akhabhai had tried to hit the Honda, which Vishan - accused No.6 was driving and at that time, quarrel took place and police seized the motorcycle. The said incident was settled and no complaint was filed. Thereafter on 9.5.2020, the Honda motorcycle was returned back to one Baldev and at that time, they decided to kill Akhabhai. Thereafter, said Vishan - accused No.6, his brother Lakha Koli, Dinesh Koli and Lalubha Vaghela proceeded towards Bhimasar and Vishan was driving the car and he tried to dash said car with Akhabhai and tried to kill him. Akhabhai ran away nearby and thereafter, they all came their field at around 12:00 o'clock at noon. Mr. Vishan - accused No.6 received call from Akhabhai and inquired as to why Vishan tried to kill Akhabhai and thereupon, the first informant gave false reply saying that he was not involved. For such answer, Akhabhai told him that they are coming to his field for quarrel, be ready for the same and thus, Vishan, his brother and others were informed about these facts and thus, they all armed with weapons and became ready for quarrel and set nearby field of one Lakhman Bijal. At that time, white coloured jeep came near the field of Ramesh Bhavan, the first informant of present FIR, the first informant stepped down from the jeep along with dhariya in his hand and Akhabhai was armed with gun and the first informant gave blow with dhariya and caused injury in the left hand of Vishan - accused No.6, and Akhabhai gave blow of gun on Ramsi's hand, Vishan's brother. Other occupants of the scorpio vehicle came out from it and attacked on Vishan and his brother and

R/CR.MA/18854/2020 CAV JUDGMENT DATED: 25/08/2021

others. At that time, Vishan's brother and other co-accused came along with weapons. As Akhabhai and his associates tried to run away in the scorpio vehicle, Vishan's brother, namely Lakhabhai dashed the scorpio vehicle by tractor, another cousin of Vishan, namely, Kanji Bijal came with another tractor parked on rear side behind which, Lakhman Bijal came with sumo jeep and parked the same and thus, blocked the jeep of Akhabhai.

3. As such, present applications were tagged with other four applications, but for want of relevant details with regard to other co-accused, the Court thought it fit to hear applications of present applicants, who came on their respective vehicles and blocked the way of scorpio car so as to prevent said Akhabhai and his associates from escaping the scene of offence.

4. The present applicants are accused Nos.1 to 3 as per FIR. The rest facts and allegations mentioned in FIR and cross FIR are not relevant for the purpose of disposal of present applications and therefore, they are not narrated here, but the fact remains that after completion of investigation, charge sheet had been filed against 22 accused persons and as many as 110 witnesses are cited in the charge sheet to bring home the charge levelled against the applicants and other co- accused persons.

5. On conjoint reading of FIR and cross FIR in its entirety, following aspects requires to be noted.

(i) Charge sheets are filed in both the FIRs and on account of assault took place on 9.5.2020 resulted into injuries on the

R/CR.MA/18854/2020 CAV JUDGMENT DATED: 25/08/2021

accused persons and five homicidal death on the side of the complainant.

(ii) The presence of the applicants along with their respective vehicles is noticed by the Court in both the FIRs and also the manner and the mode in which, they were parked so as to block the way for the scorpio car to escape from the scene of offence.

6. Bearing in mind aforesaid facts and allegations, learned advocate Mr. Rachh for the applicants submitted as under:-

(a) The applicants have not assaulted any of the deceased persons and no recovery/discovery has been made from the applicants.

(b) No blood stains are found either on the clothes of the applicants or on any vehicle, and no any weapon is recovered at the instance of the applicants.

(c) The applicants are implicated in the ongoing dispute with the complainant side and other co-accused with respect to the land and none of the applicants participated in any manner in the assault of the deceased persons and thus, there is no direct or indirect evidence connecting the present applicants with the offence in question.

(d) The complainant side committed initial act of aggression and the case involves not only over-implication, but there are different version of the incident on the part of the complainant side.

(e) Lastly, the applicants have no any past antecedents and

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therefore, they may be enlarged on bail on suitable terms and conditions.

7. Per contra, learned Public Prosecutor Mr.Mitesh Amin and learned advocate Mr.Kirtidev Dave appearing for the complainant, while opposing present bail applications, submitted that the way on which the incident took place is a narrow way and the complainant side was intercepted and after occurrence of free fight at initial stage, as soon as the complainant side was trying to take the vehicle on reverse, the scorpio car was blocked by the present applicants and thus, the applicants and other co-accused gathered at the scene of offence with ulterior motive to achieve their common object to eliminate Akhabhai and thus, formed an unlawful assembly and committed heinous crime of murder of five persons and therefore, request was made to reject the bail applications.

8. Before present bail applications are considered on its merits, it needs to be kept in mind that accused Nos.6,10,13,15 to 17 preferred bail applications before this Court and the Coordinate Bench of this Court enlarged aforesaid accused persons on bail as per various orders. Feeling aggrieved by the orders in their favour, the complainant side filed criminal appeal before the Hon'ble Apex Court. Vide order dated 20.4.2021, bail granted in favour of said accused persons came to be cancelled. In the present offence, accused Nos.18 to 22, who are women, are granted bail and it appears that grant of bail in favour of the women are not challenged by the complainant side. As of now, rest of the accused persons are in jail. Except present

R/CR.MA/18854/2020 CAV JUDGMENT DATED: 25/08/2021

applicants, other accused persons are alleged to have armed with sharp edged weapons. It is a matter of fact that PM report of five deceased persons do not indicate gun shot injuries, but the injuries indicate the use of sharp edged weapons.

9. Upon hearing the submissions made at bar and considering the charge sheet papers placed on record, following picture emerges on record.

(i) Present FIR and FIR lodged by Vishan - accused No.6 on 13.5.2020 indicate that an incident took place on 9.5.2020.

(ii) The cross FIR lodged by Vishan - accused No.6 makes a reference to the fact that the accused side were armed with weapons and after initial free fight, the applicants stationed and parked their respective vehicles in such a manner that the scorpio car could not find the escape route and thus, facilitated other co-accused to complete their object of eliminating Akhabhai and in doing so, other four persons were also done to death.

(iii) From bare reading of the FIR and cross FIR, it appears that the deceased tried to flee away in the vehicle i.e. scorpio car, but, as it was cornered by the applicants with the help of tractors and Tata sumo, the deceased persons could not save themselves.

(iv) The accused side had come at the scene of offence with weapons like pistol, dhariya and knife and both the FIRs indicate presence of the applicants and other accused were armed with weapons to assault the deceased. The cross FIR contains narration of how the deceased Akhabhai and

R/CR.MA/18854/2020 CAV JUDGMENT DATED: 25/08/2021

others tried to run away from the scene of offence, but they were blocked and assaulted resulting in five homicidal death.

(v) Considering the role attributed to the present applicants, the submissions made by learned advocate Mr. Rachh for the applicants, as aforesaid, is irrelevant or insignificant to be considered for the purpose of grant of bail, because the applicants and other co-accused persons are also charged with the provisions of sections 143, 144, 147, 148, 149 r/w section 120-B of the IPC.

10. In view of above findings, the Court is not convinced with the submissions made by learned advocate Mr. Rachh for the applicants to exercise the discretionary power in favour of present applicants, as they assembled at the scene of offence with per-meditation of their motive to assault the deceased persons, and in that process, the applicants cornered and blocked the scorpio car of deceased Akhabhai and achieve their common object to eliminate by hatching a criminal conspiracy, which surfaces on plain reading of both the FIRs.

11. In the result, present Criminal Misc. Applications, being devoid of merits, deserve to be rejected and accordingly, they are hereby rejected. Rule discharged.

12. Registry to maintain copy of this order in each matter.

(S.H.VORA, J) SHEKHAR P. BARVE