Gujarat High Court

Kazi Alfaz @ Mako Yusufbhai @ ... vs State Of Gujarat on 27 September, 2021

Bench: B.N. Karia

R/CR.MA/13001/2021                             CAV JUDGMENT DATED: 27/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 13001 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?

========================================================== KAZI ALFAZ @ MAKO YUSUFBHAI @ BABUBHAI Versus STATE OF GUJARAT ========================================================== Appearance:

MR. YATIN N. OZA FOR MR ZUBIN F BHARDA(159) for the Applicant(s) No.

MS. LAKSHA BHAVNANI FOR MR AFTABHUSEN ANSARI(5320) for the

MR. MANAN MEHTA, APP for the Respondent(s) No. 1 ==========================================================

CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

Date : 27/09/2021

CAV JUDGMENT

1. The present application is filed under Section 439 of the Code

of Criminal Procedure by the applicant for regular bail in

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

connection with an FIR being C.R. No. I165 of 2019 registered

with Kadi Police Station, District: Mehsana for the offence

punishable under Sections 302, 307, 364, 365, 342, 120(b) and 34

of the Indian Penal Code read with Section 135 of the Gujarat

Police Act.

2. Heard learned advocate for the applicant, learned advocate

for the original complainant as well as learned APP for the

respondentState.

3. It is submitted by learned advocate for the applicant that

applicant is falsely involved in the offence by the prosecution and

no specific overt act or role has been attributed to the applicant in

the entire FIR. That in the chargesheet papers and during the

investigation, except one set of the witnesses, who are created by

the prosecution, it is alleged that when the accused persons were

assaulting the victim, the applicant and one Irfan @ Gori got out of

the Creta car and brought out the victim Sharifkhan from the Creta

Car, and thereafter, the other accused assaulted the said

Sharifkhan. It is further submitted that one of the main accused

namely Malek Arbaz @ Babji Salimbhai Hamadbhai, who was

alleged to be in possession of iron pipe, was ordered to be enlarged

on regular bail by this Court (Coram: Hon'ble Dr. Justice A.P.

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

Thaker) vide order dated 13.07.2021 in Criminal Misc. Application

No.8912 of 2021. It is further submitted that against the order

passed by this Court in Criminal Misc. Application No.8912 of 2021

releasing Malek Arbaz @ Babji Salimbhai Hamadbhai on bail, the

prosecution approached the Hon'ble Apex Court challenging the

said order, which was declined by the Hon'ble Apex Court and the

order passed by the Coordinate Bench of this Court dated

13.07.2021 was confirmed. It is further submitted that the

applicant being identifiably situated with the coaccused, who have

been ordered to be enlarged on bail and having lesser role, so far as

gravity is concerned, applicant should be enlarged on bail. It is

further submitted that complainant claims to be an eye witness who

has witnessed the assault along with two other bogus witnesses

namely Imrankhan Amirkhan Pathan and Munafbhai Akbarbhai

Khokhar, who are alleged to have taken the victim Sharikhan to the

hospital alongwith the above named two persons in the auto

rickshaw of Munafbhai Akbarbhai Khokhar. The CCTV footage

collected from the Bhagyoday Hospital clearly falsifies the story of

the complainant as well as other two witnesses, who are created by

the prosecution. It is further submitted that statements of other

witnesses, who are shown to be eye witnesses, have also not

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

attributed any overt act to the applicant except that applicant, was

having in his hand a wooden stick. That Malek Arbaz @ Babji

Salimbhai Hamadbhai having a sword in his hand is already

released on bail by this Court vide order dated 13.07.2021.

Therefore, prayer made by the applicant requires to be considered

by enlarging on bail by imposing suitable conditions. It is further

submitted that in Criminal Misc. Application No.17901 of 2020,

while enlarging the main accused on bail, this Court has observed

that prima facie, the story put up by the eye witness is doubtful and

this court has doubted the presence of the complainant who claims

to be an eye witness of the entire incident. That applicant is in jail

since considerable period, therefore also, prayer made by the

applicant requires to be considered as allegations are general in

nature and there is no specific role attributed to the present

applicant even in the investigating papers. It is further submitted

that as per the prosecution story, after being assaulted, deceased

was taken to the Bhagyodaya Hospital, where doctor had examined

the deceased and asked the family members to admit the deceased

in a better equipped hospital and during the entire process, doctor

has not taken to record the case history or even a declaration in the

form of dying declaration although it is stated throughout that

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

deceased was conscious. That prosecution has tried to cook up a

false story by alleging that when the deceased was being taken

from Bhagyodaya Hospital, Kadi to Civil Hospital, Ahmedabad, at

that time, during the transit, the deceased informed his father and

other persons, who were accompanying him to Ahmedabad about

the assault being caused by banging from the front of a Pickup Dalu

with the swift car that was driven by the deceased. It is further

submitted that there being no specific allegations nor any motive or

intention or any kind of animosity attributed to the petitioner with

a deceased, he should be released on bail. It is further submitted

that other coaccused namely Dolani Rauf Abdulrashid, Taufik @

Rubber Abdulrashid Dolani and Malek Irfan @ Giri Salimbhai are

already released on bail by the learned Sessions Court, Mehsana in

different applications preferred by the coaccused persons. Hence, it

was requested by learned advocate for applicant to enlarge the

applicant on bail.

4. Learned APP for the respondentState has strongly objected

the submissions made by learned advocate for the applicant and

submitted that prima facie involvement of the present applicant is

clearly made out by the prosecution. He has further referred the

statement of prosecution witnesses namely Mohd. Moin son of

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

Chhotumiya Karimmiya Chisti, Inayatbhai Yunusbhai Suleman Bhai

Mansuri, Munafbhai Akbarbhai Parvarkhan, Imrankhan Aamirkhan

Pathan and Mohd. Munaf son of Chhotumiya Karimmiya Chisti

from the chargesheet papers and submitted that all the witnesses

were present at the time of committing the offence. It is further

submitted that these four witnesses and deceased himself has

declared the name of the present applicant in his oral dying

declaration. Learned APP has further referred the panchnama

prepared during the course of investigation and submitted that

weapon used by the applicant was also recovered as per the

instruction given by the applicant himself. That weapon used in the

offence was also identified by the present applicant. It is further

submitted that almost 31 injuries were found on the body of the

deceased and he was succumbed to the injuries. It is further

submitted that considering the various statements of the witnesses

and as the applicant is involved in number of criminal antecedents,

no prayer made by the applicant can be granted. Learned APP has

tried to distinguish the order passed by this Court in Criminal Misc.

Application No.17901 of 2020 as well as order dated 13.07.2021

passed in Criminal Misc. Application No.8912 of 2021 by this Court

( Coram : Hon'ble Dr. Justice A.P. Thaker) and submitted that role

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of the present applicant is quite different than the role played by

the present applicant and no benefit of parity can be granted to the

present applicant. Hence, it was requested by learned APP to

dismiss the present application.

5. Learned advocate Ms. Laksha Bhavnani appearing for the

original complainant has also supported the arguments advanced

by learned APP appearing for the respondentState and submitted

that considering the statement of the witnesses recorded by the

investigating agency, prima facie, involvement of the present

applicant is clearly made out by the prosecution. It is further

submitted that grievous role was played by the present applicant in

committing murder of the deceased Sharifkhan. That he has used

the deadly weapon by committing the offence. That different

witnesses have identified this person at the time of committing the

offence. It is further submitted that ground of parity would not be

available to the applicant as he has played different role in

committing the offence, and therefore, no benefit can be given to

the present applicant. In support of her case, learned advocate

appearing for the original complainant has relied upon the

judgment reported in 1998 Cri LJ 2374, Paragraph 18, 19 and 20

as well as Judgment of this Court passed in Criminal Misc.

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

Application No.16894 of 2015 and Criminal Misc. Application

No.17564 of 2011. She further submitted that parity may not be a

ground to enlarge the present applicant on regular bail as the role

of the present applicant is graver than the role played by other co

accused, who are released on bail. Hence, it was requested by

learned advocate for the original complainant to dismiss the

application.

6. Having gone through the facts of the case as well as

arguments advanced by learned advocate for the applicant, learned

advocate for the original complainant as well as learned APP for the

respondentState, it appears that present offence was registered

with Kadi Police Station, Dist: Mehsana being C.R.No.I165 of

2019, punishable under Sections 302, 307, 364, 365, 342, 120B

and 34 of the Indian Penal Code read with Section 135 of the

Gujarat Police Act. In the complaint, the complainant Altafmiya

Aiyubmiya Imammya alleged that he is residing with his parents

and is doing labour work. His father is rickshaw driver and his

mother is a homemaker. He has two brothers in which Afzalmiya is

the eldest, who has been married to one Rehanbibi daughter of

Ajmuddin Rahemuddin Shaikh and he has one son. The

complainant is a second child and younger brother of Afzalmiya

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

whereas the youngest of the three brothers is Arbazmiya who is still

studying. On 23.09.2019, at around 9.00 p.m., in the night the

complainant having his dinner, at around 11.30 p.m., went to

Royal General Store situated in Chabutara Chowk for consuming

Masala and after buying the Masala he was standing there, at that

time, one Maroon Colour Creta Car bearing registration No.5765

came near the road of Royal General Store and stopped and from

the car, two persons namely Malek Ifan @ Giri Salimbhai and

present applicant both came out holding the friend of the

complainant namely Sharifkhan Nasirkhan Gori and brought him

on the road and both of them were having iron pipes in their hands.

Along with them, Malek Arbazbhai Salimbhai, Dolani Taufik @

Rabbar, Abdul Rashid, Dolani Rauf Abdul Rashid, Ghanchi Ashraf

@ Aslo Ibrahimbhai get out of the car along with iron pipes in their

hands and assaulted his friend Gori Sharifkhan Nasirkhan all over

the body along with the iron pipes. Upon Sharifkhan raising hue

and cry, the complainant Pathan Imrankhan Amirkhan and

Khokhar Munafkhan Akabarkhan intervened and got their friend

released. At that time, the other shop owners nearby the Chabutara

Chowk also came rushing there and Malek Irfan @ Giri Salimbhai

told present applicant that the work of Sharif Khan which was

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given had been complied with in Chabutara Chowk and asked him

to inform about the same to Ghanchi Ramizbhai Mohammadbhai

and after saying this, they all fled in the Creta Car towards the road

leading to Sangam Hotel. Thereafter, as Sharifkhan who happened

to be the friend of the complainant had sustained severe injuries, he

was made to seat in auto rickshaw of Khokhar Munafkhan

Akbarkhan and was taken to Bhagyodaya Hospital and upon

administering primary treatment, the doctor of Bhagyodaya

Hospital directed that he should be admitted in a hospital for

further treatment in Ahmedabad as he has sustained serious

injuries. At that time, father of Sharifkhan namely Nasirkhan

Lalkhan Gori and his mother Ruksanaben reached the hospital and

upon calling for the ambulance from Kadi Nagarpalika, Sharifkhan

was taken in ambulance from Bhagyodaya Hospital to Ahmedabad.

During the transit the complainant and Nasirkhan who happens to

be the father of Sharifkhan inquired the Sarifkhan about the

occurrence of the incident who in turn informed that he along with

Chisti Moinmiya Kalumiya had gone to Mehsana in his swift car

and were returning to Kadi from highway road via Dhanaji Alampur

Bhatasasn and at around 10.00 to 10.30 p.m., when they were

passing through Jasalpur village at that time one pickup van which

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was being driven in full speed, dashed from the front of the swift

car and as a result of which the swift car got dashed with a camel

cart, which was parked near a temporary building and stopped.

Thereafter, one Creta Car came behind their swift car and stopped

and from the said Creta Car Malek Irfan @ Giri Salimbhai, present

applicant and Malek Arbaz Salimbhai, Dolani Taufiq @ Rabbar

Abdul Rashid, Dolani Rauf Abdul Rashid who had come there with

iron pipes in their hands and one Ghanchi Ashraf @ Aslo

Ibrahimbhai had a sword in his hand and climbed on bonnet of his

car and thrust the sword inside the glass and broke the glass, at

that time, Chisti Moinmiya Kalumiya who was with him in the cart

got out and ran away and upon Sharifkhan trying to run, he was

caught and injuries were inflicted on his hands and legs by way of

iron pipes and at that time, Malek Irfan @ Giri told everybody that

Sharifkhan had eloped with a Ghanchi girl and had performed a

love marriage with her and therefore, he should be lifted and taken

to Chabutara Chowk, and there, he would be killed. As these were

the orders of Ghanchi Ramizbhai Mohammadbhai. Therefore, he

was kidnapped in the maroon Colour Creta Car and thereafter,

assaulted. Upon Sharifkhan being admitted in Vadilal Hospital in

Ahmedabad in ICU during the course of treatment, he succumbed

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to injury sustained by him. Thereafter, upon Kadi Police reaching

Vadilal Hospital, Ahmedabad inquest Panchnama was carried out of

dead body of Sharifkhan and thereafter, the complainant along

with the father of the Sharifkhan went to Kadi Police Station to

preferring Criminal Misc. Application No.15968 of 2020 which was

withdrawn with a liberty to approach learned Sessions Court

concerned after availability of the FSL report. Permission as sought

for was granted on 27.10.2020. Thereafter, upon receipt of the FSL

report and on the basis of the change of circumstances, as the

principal accused namely Ramiz Mohammadbhai Ghanchi was

enlarged on bail by this Court. Applicant approached the learned

Sessions Court concerned with a prayer to release him on regular

bail alongwith the ground of parity and delay in concluding the

trial. The learned Sessions Court, Mehsana rejected the bail

application of the applicant on 10.05.2021.

7. It further appears that coaccused namely Dolani Rauf

Abdulrashid, Ashraf @ Ashlo Ibrahim Ghanchi, Taufik @ Rubber

Abdulrashid Dolani as well as Malek Irfan @ Giri Salimbhai are

released on bail under Section 439 of Cr.P.C. by the learned

Sessions Court, Mehsana in different applications preferred by the

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coaccused. It is also fact that another accused who has played

grater role are also released on bail by this Court in Criminal Misc.

Application No.17901 of 2020 vide order dated 24.12.2020 and

Criminal Misc. Application No.8912 of 2021 vide order dated

13.07.2021. It appears that order passed in Criminal Misc.

Application No.8912 of 2021 dated 13.07.2021 was challenged by

the prosecution before the Hon'ble Apex Court which was declined

by the Hon'ble Apex Court and order passed by this Court was

confirmed. It further appears that on previous occasion dealing

with the bail application of the coaccused, this Court has doubted

the presence of the complainant who claims to be an eye witness of

the entire incident. This Court has also doubted the genuineness

and veracity levelled in the FIR as also doubted the presence of the

complainant who claims to be an eye witness in the FIR. The

witnesses, whose statements are recorded and are claimed to be

eye witnesses of the offence, have also not attributed overt act to

the applicant except that applicant was having in his hand a

wooden stick whereas those witness Malek Arbaz @ Babji

Salimbhai Hamadbhai was having sword in his hand and he was

already released on bail vide order dated 13.07.2021. The present

applicant being similarly situated and having been wooden stick

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shown to be possession. Compared to the sword, which was in

possession of the coaccused has been ordered to be released on

bail. The complainant who claims to be an eye witness along with

two other witnesses namely Imrankhan Amirkhan Pathan and

Munafbhai Akbarbhai Khokhar who have alleged to have taken the

victim Sharifkhan to the hospital alongwith the above named two

persons in the auto rickshaw of Munafbhai Akbarbhai Khokhar.

CCTV footage collected from the Bhagyodaya Hospital clearly

falsifies the story of the prosecution as well as other two witnesses,

who are created by the prosecution.

8. Having perused entire chargesheet papers of the prosecution

and role attributed to the present applicant and having considered

the fact that other coaccused are released on bail, this Court is of

the considered view that benefit of parity is required to be given to

the present applicant.

9. In the facts and circumstances of the case and considering the

nature of allegations made against the applicant in the FIR, I am of

the opinion that this is a fit case to exercise the discretion to

enlarge the applicant on regular bail.

10. Hence, the present application is allowed and the applicant is

ordered to be released on regular bail in connection with an FIR

R/CR.MA/13001/2021 CAV JUDGMENT DATED: 27/09/2021

being C.R. No. I165 of 2019 registered with Kadi Police Station,

District: Mehsana on executing a personal bond of Rs.10,000/

(Rupees Ten Thousand Only) with one surety of the like amount to

the satisfaction of the learned Trial Court and subject to the

conditions that the applicant 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 State of Gujarat without prior permission of the Sessions Judge concerned;

[e] furnish latest and permanent 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 learned Sessions Court concerned;

11. The Authorities will release the applicant only if he 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 learned Lower Court having jurisdiction to try the case. It will

be open for the Sessions Court to delete, modify and/or relax any

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of the above conditions, in accordance with law. At the trial,

learned Trial Court shall not be influenced by the observations of

preliminary nature, qua the evidence at this stage, made by this

Court while enlarging the applicant on bail.