Kanaiyalal Kalidas Limbachiya ... vs State Of Gujarat
2021 Latest Caselaw 8138 Guj

     R/CR.MA/5208/2021                             ORDER DATED: 09/07/2021



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION NO. 5208 of 2021
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          KANAIYALAL KALIDAS LIMBACHIYA (NAI)
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR. HARSHIT TOLIA, ADVOCATE WITH
MR ANKIT Y BACHANI(5424) for the Applicant(s) No. 1
MR. HRIDAY BUCH, ADVOCATE WITH
MR TUSHAR CHAUDHARY(5316) for the Respondent(s) No. 2
MS. MOXA THAKKER, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                            Date : 09/07/2021
                            ORAL ORDER

1) The present application has been filed under Section 439 (2) of the Code of Criminal Procedure, 1973 ("the Cr.P.C."), inter alia, praying for cancellation of regular bail granted by 5th Additional Sessions Judge, Banaskantha District, Palanpur vide order dated 15.01.2021 passed in Criminal Misc. Application No. 25 of 2021.

2) Learned advocate Mr. Tolia appearing for the applicant-original complainant has submitted that the trial Court, without giving any cogent reason and without examining the material and the evidence on record, has cursorily passed the order granting regular bail to the opponent No.2. He has submitted that the clinching evidence directly implicating the opponent No.2 is ignored by the trial Court. As per the submission of the learned advocate Mr. Tolia, such evidences are, in the form of electronic evidences, recorded in mobile/CD/Pen-drive, establishing noting and also extra judicial confession of actual offence. He has submitted that the photograph of the deceased was also taken in mobile, which has shown the ligature mark on the neck of the deceased, which directly implicating

R/CR.MA/5208/2021 ORDER DATED: 09/07/2021

the present opponent No.2 in the offence. He has submitted that the witness and independent witness namely Bhikhabhai Kantibhai Nai had seen the deceased with the opponent No.2, quarreling around 10:30 pm on the day of the incident.

3) With regard to the extra judicial confession, he has submitted that the wife of the deceased in her statement dated 02.09.2020, has confessed the entire offence and such confession was more than enough for rejection of the bail application filed by the opponent No. 2 before the trial Court. It is further submitted that the accused initially had made the first confession on mobile and he had also requested her not to file any FIR. Thus, he has submitted that the trial Court has ignored seriousness of the offence and impact on the society and has released the opponent No.2 by assigning the irrelevant reasons and ignoring the aforenoted evidence.

4) In support of this submission, learned advocate Mr.Tolia has placed reliance on the judgment of the Apex Court in the case of Dr.Naresh Kumar Mangla v. Anita Agarwal and Others, reported in 2020 SCC Online SC 1031 and also on the decision of Kanwar Singh Meena v. The State of Rajasthan and Another, reported in (2012) 12 SCC 180 . It is submitted by him that the Sessions Court or the trial Court has to examine the gravity of the crime, character of evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the Course of justice and such other grounds while canceling the bail order granted under Section 439(2) of the Code. It is further submitted that while canceling the bail under Section 439(2) of the Code, the primary considerations, which weigh with the Courts, are whether the accused is likely to tamper with evidence or interfere or attempt to interfere with the

R/CR.MA/5208/2021 ORDER DATED: 09/07/2021

due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. Thus, he has submitted that the trial Court, while granting bail to the opponent No.2-accused, has ignored the relevant material indicating prima facie involvement of the accused and has granted the bail on account of irrelevant material, which has no relevance to the question of grant of bail and hence, the present application may be allowed.

5) In response to the aforesaid submissions advanced by the learned advocate Mr. Tolia, learned advocate Mr. Hriday Buch appearing for the the opponent No.2-accused has submitted that the order of the trial Court does not need any interference as it contains valid reason in resolving the opponent No.2-accused on bail.

6) While referring to the contents of the FIR, learned advocate Mr. Hriday Buch has submitted that in fact there is a substantial delay in registering the FIR as it has been serious offence under Section 302 of the IPC as the complainant though was having knowledge about the incident, after 12 days to 15 days from the death of the deceased, however, the FIR is registered on 31.08.2020 without explaining any delay and this factor has weighed upon the trial Court for granting the bail, and hence, the order, granting bail to the accused, may not be disturbed.

7) Further, it is submitted by the learned advocate Mr. Buch that, prima facie, the prosecution has failed to establish the case of the homicidal death, as the deceased was cremated on the next day of incident i.e. 31.08.2020 itself and the entire case of the prosecution depends on one mobile photo, which was taken by Ashokbhai, before cremating the deceased and the same was shown to physiotherapist Dr. Ankitbhai Manubhai Nai, who opined that, looking to the photograph of

R/CR.MA/5208/2021 ORDER DATED: 09/07/2021

the deceased, it cannot be said that the deceased had died because of consuming liquor.

8) Learned advocate Mr. Buch has further submitted that the prosecution has heavily relied upon the audio recording and the extra judicial confession of the wife of the deceased, who was allegedly having an affair with the present applicant. With regard to the electronic evidence, it is submitted by him that the trial Court has precisely observed that such evidence is sent to the Forensic Science Laboratory (FSL), after receiving the voice sample of the accused and the same would take considerable time and hence, the accused was precisely released on bail. Thus, he has submitted that the entire case of the prosecution hinges on a weak piece of evidence and it is a settled law that such extra judicial confession has to be corroborated with other evidence and the trial Court, while exercising its jurisdiction and examining the relevant facts, has thought fit to release the accused on bail and hence, the same may not be disturbed.

9) I have heard the learned advocates appearing for the respective parties and the documents as pointed out by them are also perused.

10) The prosecution was set in motion by the FIR registered on 31.08.2020 by the present applicant. It appears that before that a complaint was given on 25.07.2020 before the concerned Police Station for registration of an FIR. The complainant has alleged that the deceased was found dead on 31.07.2020 in the field and it was presumed that at that time, he died because of consuming liquor, as he used to drink heavily.

11) The complainant has alleged that the photograph of the deceased was taken by one Ashokbhai, which was shown to Physiotherapist Dr. Ankitbhai Manubhai Nai, who, while seeing the photograph and noticing the ligature marks on the neck of the deceased, had opined that the same

R/CR.MA/5208/2021 ORDER DATED: 09/07/2021

cannot be said to be a natural death but it appears to be a homicidal death. The narration given in the complaint indicates that he had shown such photograph, after two or three days to the physiotherapist and it is further narrated by him that the complainant has confessed on the mobile phone with regard to committing murder of the deceased after 12 th day from the funeral of the deceased.

12) Thus, at the most it can be presumed that the complainant was aware through the extra judicial confession of the accused, which was recorded in the mobile after 12 th day of the funeral of the deceased. A perusal of the order of the trial Court reveals that though the order of the trial Court is not happily worded, the trial court has considered four factors;

(i) Filing of the charge sheet and hence no question of tempering with the evidence;

(ii) The delay in registering the FIR;

(iii) No postmortem retort, dying declaration with respect to death of the deceased;

(iv) The Electronic evidence, which is contained in the mobile phone and was sent to the FSL and the delay in procuring such evidence.

The above four factors are considered by the trial Court while releasing the accused on bail.

13) Thus, it cannot be said that the trial Court was oblivious of the facts of the case, the aforesaid facts are examined in light of the observations made by the trial Court, it cannot be said that the accused is in a position to tamper with the evidence or interfere in due course or due course of justice.

       R/CR.MA/5208/2021                                 ORDER DATED: 09/07/2021




14)       It cannot be said that the trial Court has ignored the relevant

material indicating prima facie involvement of the accused or has taken into consideration the irrelevant material. As noted hereinabove, the trial Court order is not happily worded, but it cannot be opined that absolutely irrelevant consideration has weighed upon the trial Court in granting the bail to the accused.

15) The trial Court was conscious about the delay in reporting the homicidal death, lack of postmortem or dying declaration and the delay in obtaining the electronic evidence.

16) The trial Court was not expected of dealing with the entire evidence while granting the bail as it is no more res integra that prima facie consideration has weighed upon the trial Court, while examining the case of the accused for releasing him on bail.

17) In the considered opinion of this Court, the order passed by the trial Court granting bail to the accused-opponent No.2 cannot be canceled since the same is not tainted with irrelevant consideration or it cannot be said that the trial Court has illegally exercised its power.

18) In view of the above, the Application stands rejected. Notice is discharged.

(A. S. SUPEHIA, J) VISHAL MISHRA