Rathwa Vikramsingh Hemsingh vs State Of Gujarat
2021 Latest Caselaw 846 Guj

        R/CR.MA/1750/2020                                     ORDERl




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 1750 of 2020
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                    RATHWA VIKRAMSINGH HEMSINGH
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR R N GHOTRA(2804) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MRS. R.H. PATHAN(6540) for the Respondent(s) No. 1
MR.H.K.PATEL, APP, (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 20/01/2021
                             ORAL ORDER

[1] The present application is filed under Section 439 of the

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

with FIR being I-CR No.50 of 2018 registered with Ravpura

Police Station, Vadodara City for offence under Sections 302,

201, 364, 114, 120(B) of the Indian Penal Code.

[2] Learned advocate Mr.R.N.Ghotra for the applicant submits

that the applicant is coming from reputable family and he has

deep rooted connections with the society. He submit that the

present applicant is innocent and he has not committed or

abetted the alleged offence. He submits that scientific

evidence, memorandum of post mortem conducted do not

bear the signature and seal of the forensic experts and

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therefore, there is a gross negligence on the part of the

investigation officer. He submits that the investigation is concluded

and charge-sheet is filed. There is no evidence connecting the

applicant with the offence as it is not the case of eye witness and

the theory of the prosecution is based on circumstantial evidence.

Learned advocate for the applicant has relied upon several

judgments of this Court as well as the Apex Court to submit that bail

is a rule and as the trial is prolonged, the case of the applicant

deserves consideration. He has relied upon the decisions in the case

of Gudikanti Narasimhulu v/s. Public Prosecutor, High Court

of Andrapradesh, reported in 1978(1) SCC 240, in the case of

Kalyan Chandra Sarkar v/s. Rajesh Rajan Alias Pappu Yadav,

reported in 2005(2) SCC 42, in the case of State of Kerala v/s.

Raneef, reported in 2011(1) SCC 784 and in the case of Vinod

Bhandari v/s. State of Madhya Pradesh, reported in 2015

(11) SCC 502. He lastly submits that if the applicant may be

released on bail, the applicant will not misuse the liberty on bail and

will not flee from justice.

[3] Learned Additional Prosecutor has opposed the grant of bail

submitting that this is a case where the wife of the applicant and

two minor children have been murdered and therefore, offence is of

heinous nature. It is submitted that the applicant had doubted the

chastity of the deceased and had also doubted the parenthood of

the two children which resulted into the offence of triple murder. It is

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submitted that crime had remained undetected and it was only after

the extensive investigation that the offence came to be detected

and it was the applicant through whom the panchnama was drawn

and the bodies of three murdered victims were able to be traced

which were buried near the residence of the applicant. It is

submitted that though the offence was registered on 01.05.2018,

the applicant would be arrested only on 14.02.2019 and therefore,

was not available for investigation for a long period and that too

immediately after the death of his wife and two children. He has

placed reliance upon the statement of several witnesses to indicate

that things were not running properly between the husband and

wife and that husband had taken the custody of the wife and two

children from Nari Sanrakshan Gruh at Nizampura and since then

whereabouts of the wife as well as children were not found till their

bodies were discovered in buried manner.

[4] In rejoinder, learned advocate for the applicant submits that

the applicant is serving in Army and therefore, the applicant was on

duty and was therefore, arrested later on after a period of one year.

[5] The Court has heard learned advocates for the parties and

perused the documents placed on record. The present application is

a successive bail application, wherein by an order dated 09.10.2019

in Criminal Misc. Application No.15075 of 2019, the applicant had

sought permission to withdraw the application and therefore, the

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present application is second successive application after filing of

the charge-sheet.

[6] The FIR came to be registered on 01.05.2018 with Ravpura

Police Station, wherein it was alleged that Vikarmkumar Hemsingh

Rathwa, his mother Shantaben Hemsingh Rathwa and his father

Hemsingh Premsingh Rathwa, residents of Bhilpur, Taluka and

District Chhota Udepur, with the help of each other, hatched

criminal conspiracy with a view to murder the daughter of the

complainant Shakuntlaben Kalyansinh Mansinh Rathwa and her

twins and wife of applpicant, residents of Bhilpur, Taluka and District

Chhota Udepur and with an intention to put them in danger of

death. After the investigation was completed, the charge-sheet has

been filed for offence under Sections 364, 302, 201, 114 and 120(B)

of the Indian Penal Code.

[6.1] From the case papers, it appears that there was matrimonial

disharmony between the applicant and the wife as the applicant

doubted the chastity of the wife and during the pregnancy itself, the

deceased wife Shakuntlaben had to be taken to the Nari Sanrakshan

Gruh during the delivery period. It was with the help of the Nari

Sanrakshan Gruh that the twins were delivered from where the

applicant had taken the custody of the deceased persons. It is

observed by the Sessions Court while rejecting the bail application

as under:-

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".....It appears that the case against the present applicant-accused is that he had taken away his wife Shakuntlaben and two infants from SSG Hospital, Vadodara and thereafter he kept them in his house at Bheelpur and during this period, he killed them by strangulating their necks and thereafter, hidden their bodies after digging a pit in the compound of his house. After two years the police could recover one human skeleton after excavating the said place, which is besides his house and there is no explanation given by the applicant about the skeleton found from the compound of his house....."

[7] The statement of the witness namely Kamlaben dated

16.05.2018 indicates that on 30.03.2016 the deceased and the two

minor children were in custody of the Nari Sanrakshan Gruh after

being discharged from the hospital, where they were receiving

treatment. After executing a compromise deed (Samjuti Karar), their

custody was handed over to the applicant and it is from that day

that whereabouts of the deceased persons has not been located.

The investigation indicates that the dead body of the deceased was

traced during the course of investigation and the same were located

from the vicinity of the residence of the applicant and his parents.

[7.1] Learned advocate has tried to create doubt on the

investigation by submitting that the prosecution has failed to carry

out any scientific investigation to ascertain the dead bodies to be of

deceased wife and the children of the applicant and in view of this,

the case of the applicant requires consideration. The Court is of the

view that the condition in which the bodies were found were only in

form of skeleton and that too of the adult, whereas traces of bones

of minor could not be found. This in itself would not create a doubt

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on prosecution as the other evidences are sufficient for prima-facie

conclusion of applicant's involvement in the crime. It is incorrect to

contend that the scientific evidence is not available as during the

course of investigation 3 molar teeth for DNA profiling for

identification have been preserved and the investigation qua them

is not yet concluded.

[8] In case of Gudikanti (Supra), the Apex Court has laid down

a principle of law that it is a judicial discretion to grant bail, where

the nature of charge is vital and nature of evidence is also pertinent.

The case on hand indicates the offence to be a heinous nature and

the evidence led by the prosecution though circumstantial is

sufficient to prima-facie find involvement of the applicant.

[9] As far as the submission of learned advocate regarding delay

by relying upon the decision in the case of Raneef (Supra) is

concerned, it is pertinent to point out that there is a witness who

has stated that the applicant was the last who had taken the

custody of the deceased and the two children and thereafter, their

whereabouts has not been known. The applicant who is serving in

Army was not available for a period of more than one year. There

does not appear to be any explanation in the pleadings as to what

prevented the applicant from inquiring about the whereabouts of his

wife and new born twins even during the interregnum period. In

case of Raneef (Supra), the Court was considering the role of the

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applicant who was a medical practitioner under the provisions of

Unlawful Activates (Prevention) Act, 1967, where the relevant factor

considered was delay of several years in conducting the trial. On

merits, the Apex Court had concluded the role of the applicant

therein was of a nature where the applicant was entitled to bail.

Such not being the case in the present case, the judgment would

not help the applicant.

[10] The reliance placed upon in the case of Kalyan Chandra

Sarkar (Supra), wherein the Apex Court was considering the issue

of successive bail. In fact, the Apex Court had held that the order of

the High Court to grant the bail solely on the ground of long

incarceration would stand vitiated though the accused may have a

right to make successive bail application for grant of bail while

considering the subsequent bail application. The Court has also

taken into consideration the reasons and grounds on which the

other bail applications were rejected and that the Court is required

to record fresh ground which had persuaded the Court otherwise. In

view of the aforesaid discussion, the case of Kalyan Chandra

Sarkar (Supra) does not support the case of the applicant.

[11] The Court has also perused the order of the Sessions Court

and has found that cogent reasons have been assigned while

rejecting the bail application.

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[12] In view of the aforesaid, no case is made out for exercising

discretion in favour of the applicant. Hence, the present application

is hereby dismissed. Rule is discharged.

(A.Y. KOGJE, J) SIDDHARTH