Kaushlesh Devmani Tripathi (In ... vs State Of Gujarat
2021 Latest Caselaw 2593 Guj

       R/CR.MA/15708/2020                                     ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 15708 of 2020

================================================================
 KAUSHLESH DEVMANI TRIPATHI (IN CHARGESHEET) KAUSHLESH @
       KAUSHLENDRA S/O DEVMANI GOPINATH TRIPATHI
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 18/02/2021

                             ORAL ORDER

1. The present application is filed under Section 439 of

the Code of Criminal Procedure, 1973, for regular bail in

connection with I-CR No.466 of 2006 registered with City 'B'

Division Police Station, Jamnagar for the offence under Sections

302, 307 and 120B of the Indian Penal Code, Sections 25(1-B)(A)

and 27(1) of the Arms Act and Section 135(1) of the Gujarat Police

Act.

2. Learned Advocate appearing on behalf of the applicant

submits that considering the nature of the offence, the applicant

may be enlarged on regular bail by imposing suitable conditions. It

is submitted that the main ground for filing the application for bail

is that in case of co-accused, a separate Sessions Case came to be

registered and after full fledged trial, co-accused has been

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acquitted.

2.1 It is submitted that the Sessions Case of the applicant

could not be proceeded along with trial of co-accused as the

applicant, who is also accused in some other offence in another

State, was lodged in jail in Uttar Pradesh and was therefore, not

available for trial. It is submitted that now as the applicant is

brought before the concerned trial Court and as the co-accused,

who is identically situated, has not been acquitted, the applicant

atleast deserves to be enlarged on bail.

2.2 During the course of arguments, learned Advocate for

the applicant extensively referred to and relied upon judgment of

Sessions Case No.52 of 2007, which is in the case of co-accused,

viz. Ravindra @ Chuttaiya, S/o Sureshchandra Ramchand Tiwari

and indicated that the eyewitnesses, who were examined during

trial, have failed to identify said accused and therefore, charge

against co-accused could not be established beyond reasonable

doubt, which resulted in acquittal. It is further submitted that

same set of eyewitnesses whose evidence has been appreciated by

the Sessions Case, would be the witnesses in case of the present

applicant also and therefore, in all probability, will meet the same

fate.

2.3 It is submitted that during the course of investigation,

when the applicant was in police remand as well as in judicial

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custody in the present case, no evidence has been gathered and

when the identify of the applicant is also prima facie not

established, the application deserves consideration.

2.4 Learned Advocate for the applicant relied upon

judgment of the Apex Court in case of Umarmiya Ismailmiya

Saiyed alias Mamumiya Panju Miya Vs. State of Gujarat,

reported in (2017) 2 SCC, 752.

3. As against this, learned APP appearing on behalf of the

respondent-State has opposed grant of regular bail looking to the

nature and gravity of the offence. It is submitted that the applicant

was a policeman in Uttar Pradesh for a period of 10 years and is

well aware of the nitty-gritty of law as well as trial. He was under

transfer warrant transferred to Allahabad in connection with

several offences, 17 in number and each of such offences are of

serious nature. It is submitted that under a proclamation vide

Exh.79, the applicant is declared as absconder and was not

available for trial since 2007 and despite the applicant having

knowledge of ongoing trial had conveniently stayed away from trial

and therefore, now benefit cannot be given to the applicant for

acquittal in case of co-accused.

3.1 It is submitted that the evidence against the applicant

would be of identify as the witnesses have stated in their

statements and that such witnesses were injured witnesses who

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would be able to identify the accused who participated in shooting.

Merely because co-accused has not been identified in the Court,

cannot lead to presumption that the applicant will also not be

identified.

3.2 It is submitted that it is a serious case of contract

killing where two persons were brutally murdered. It is lastly

submitted that as the trial is already ripe and that Sessions Case is

old, naturally, the Sessions Court would grant due priority in

undertaking fact trial.

5. As against this, learned Advocate for the applicant

submitted that out of 17 offences, the applicant is acquitted in two

offences, whereas in other 15 offences, the applicant is on bail.

Learned Advocate also tried to persuade the Court by placing on

record deposition of the witnesses of the trial in case of co-accused

to submit that their evidences cannot be relied upon for the

purpose of identifying the applicant.

6. Having heard learned Advocates for the parties and

having perused documents on record, it appears that it is a case of

contract killing, where co-accused person owned an amount of

more than crore of rupees, to which business associates - one of

the injured eyewitnesses has acted as intermediary to settle the

account and it is at this stage that co-accused had hired services of

the present applicant and another co-accused in carrying out shoot

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out tragetting the persons to whom money was owed. The FIR

came to be registered on 13.12.2006 in connection with this

offence which took place on the very day, wherein it has been

alleged that the complainant of this case had given steel of Rupees

One crore and Twenty five lacs to the accused No.1 & 2. The

complainant was demanding money frequently but the accused was

not giving money hence, the complainant and his brother

Rameshchandra Agrawal came at Jamnagar and with the help of

Milan Mohanbhai Modi having his office at Dipali Enterprise in

Pantranta Complex, they tried to recover the money from the

accused. Therefore, the accused, as per preplanned conspiracy, had

sent two-three persons armed with weapons like revolver at the

office of Milanbhai Modi to make assault on the complainant and

the witnesses today at 15:30 hours, who made fire from the firearm

and caused death of complainant's brother Rameshchandra

Daoodpal Agrawal and Milanbhai Modi's friend named Ababhai and

also made deadly attack on the complainant, Milanbhai Modi and

his son Gaurang Modi by firing bullets and causing serious injuries.

7. The focus of arguments of learned Advocate for the

applicant was judgment dated 16.08.2013 recording acquittal in

Sessions Case No.52 of 2017 to co-accused Ravindra @ Chuttaiya,

S/o Sureshchandra Ramchand Tiwari, where attention is drawn to

various paragraphs of the judgment which is appreciation of

evidence of the eyewitnesses to indicate that out of the three

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eyewitnesses, one eyewitness has not identified the said accused

person and that other two were not capable to identify him.

8. In the evidence of Maheshchandra Garg at Exh.206 in

the aforesaid Sessions Case, it is held by the Sessions Court that

this witness has not proceeded to identify anybody during the

course of identification parade before the Executive Magistrate and

that when firing took place, he himself was injured and had lost

consciousness. If the evidence of this witness is considered then it

cannot be said that he was a witness for the purpose of identifying

the accused persons. The other witness, viz. Gaurang Milan Modi

at Exh.193, who was also present at the scene of offence, has

deposed that he will be able to identify the person who has fired

shoots and after stating so, he proceeded and did not identify

Ravindra @ Chuttaiya to be the person who fired. This will not

bring into question capability of that witness to identify the

applicant as well as it has also been the case of the prosecution

that there were two sharp shooters, who had fired indiscriminately

and perhaps Ravindra @ Chuttaiya was not within the vision of that

witness. However, when the deposition of Milan Modi at Exh.195,

who himself is an injured eyewitness and who has identified the

shooter before the Executive Magistrate is seen then his deposition

will become more relevant as and when it is recorded in case of the

present applicant.

9. As the applicant, once a police officer and thereafter

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involved in 17 other serious offences, of which in two, he has been

acquitted and as he was not available for trial even during ongoing

trial of a co-accused, the Court is not inclined to exercise discretion

in favour of the applicant.

10. In the case of Umarmiya Ismailmiya Saiyed alias

Mamumiya Panju Miya (supra), which was under TADA, the Apex

Court was inclined to enlarge the applicant therein on bail by

holding that the FIR was registered in violation of the procedure

prescribed under Section 20-A(1) of TADA, coupled with the fact

that even after lapse of more than 23 years, charges were not

framed in the trial. On the basis of these relevant considerations,

the Apex Court had set the applicant therein on bail. The facts in

the present case are at variance and hence, ratio may not be of any

assistance to the applicant.

11. In view of the aforesaid, the application deserves to be

and is hereby rejected. Rule is discharged. However, the trial is

ordered to be expedited.

(A.Y. KOGJE, J) SHITOLE