Gujarat High Court

Sunil Ustakbhai Vasava vs State Of Gujarat on 18 April, 2022

Bench: B.N. Karia

     R/CR.A/423/2022                                ORDER DATED: 18/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 423 of 2022

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                           SUNIL USTAKBHAI VASAVA
                                    Versus
                             STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
MR TEJAS D. SHUKLA FOR for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 18/04/2022

                                 ORAL ORDER

1. The appellant preferred one Criminal Misc. Application

No.66 of 2022 before the Court of learned 2 nd Additional

Sessions Judge, Bharuch requesting to enlarge the appellant

on regular bail on account of offence being registered vide C.R.

No.11199006211539 of 2021 with Ankleshwar Rural Police

Station, Bharuch for the offence punishable u/s. 302, 504

and 114 of the Indian Penal Code and u/s. 3(2-v) of the

Scheduled Caste and Scheduled Tribe (Prevention of Atrocity)

Act, 1989 (for short "the Atrocities Act"), wherein the learned

2nd Additional Sessions Judge, Bharuch rejected the said

application on 08.02.2022.

R/CR.A/423/2022 ORDER DATED: 18/04/2022

2. Feeling aggrieved by the said order, the appellant

preferred present appeal u/s 14A of the Atrocities Act.

3. Heard learned advocates for the respective parties as well

as learned APP for the respondent-State.

4. Learned advocate for the appellant has submitted that

the impugned judgment and order is contrary to law and

evidence on record and the appellant is absolutely innocent

person and has not committee any of the alleged offence and

there is no prima facie case against the appellant. It is further

submitted that the FIR is under the Atrocity Act is the gross

misuse of the benefits which have been granted in favour of

the reserved category by the Government. It is further

submitted that from the entire chargesheet, it is nowhere

directly or indirectly coming out on record nor there is any

direct or circumstantial evidence to connect the appellant with

the main offence which took place in 2 different parts on 2

different times and merely on the basis of earlier incident of

first part of beating the victim and then leaving the place of

incident, the appellant is implicated for offence of 302 as well

when the entire case of prosecution itself in the FIR and in the

R/CR.A/423/2022 ORDER DATED: 18/04/2022

chargesheet is that accused no.2 Mayuddin had come later on

at the place of incident possessing knife and had given knife

blows to the victim when no other accused was present.

Moreover, weapon is recovered at the instance of accused

no.2- Mayuddin from him during the investigation and his

clothes were bloodstained and neither there is any recovery or

discovery from the present appellant nor any bloodstain on

the clothes were found. Hence, it was requested by learned

advocate for the appellant to quash and set aside the

impugned judgment and order dated 08.02.2022 passed by

learned 2nd Additional Sessions Judge, Bharuch and release

the appellant on bail.

5. Learned APP for the respondent-State as well as learned

advocate for the respondent no.2 have strongly opposed the

submissions made by learned advocate for the appellant.

Referring the complaint as well as the statement of Sunil

Shantilal Vasava as well as Ratanben Chelabhai Masrubhai

Dabhi, they have submitted that intention of the present

appellant is very clear from the beginning that he decided to

commit murder of the deceased as he was in love affair with

the sister of the present appellant. It is further submitted that

R/CR.A/423/2022 ORDER DATED: 18/04/2022

all the four accused persons were called by the present

appellant. It is further submitted that before the incident,

appellant and other accused persons were present and kick

and fists blows were given by the present appellant along with

the co-accused persons and threat was also given by the

present appellant to commit murder of the deceased. It is

further submitted that prima facie, involvement of the present

appellant is established by the prosecution and appellant has

played active role in commission of the offence. Hence, it is

requested by learned APP for the respondent - State as well

as learned advocate for the respondent no.2 to dismiss this

appeal.

6. Having considered the facts of the case, submissions

made by learned advocates for the respective parties as well as

learned APP for the respondent-State and police papers

produced on record, if we consider the FIR dated 04.12.2021

filed by the complainant viz. Shaileshbhai Vasava residing at

Ankleshwar, it is alleged that before about one and half

months, the appellant along with accused nos.2 and 4 had

beaten the younger brother of the complainant viz. Sanjaybhai

doubting that he was in love affair with the younger sister of

R/CR.A/423/2022 ORDER DATED: 18/04/2022

the appellant and no complaint was given nor any settlement

was arrived at by the complainant regarding the incident. It is

further alleged that on 04.12.2021, the complainant has gone

to his in-laws place and the victim deceased was at his work

place and the complainant has returned to his home at about

04:00 p.m. It is further alleged that at about 07:30 p.m., the

victim had gone to his house after complainant had brought

him home on his motorcycle from his work. It is further

alleged that thereafter, the complainant had finished his

dinner when his mother came running and informed him that

the accused persons have come to beat victim Sanjay and

asked him to go with her. It is further alleged that the

complainant called his uncle Balu Dashrath and both went to

the place of mother of the complainant and saw accused no.3

giving 2-3 slaps to the victim and accused nos.1, 2 and 4 also

were slapping victim. It is further alleged that thereafter,

accused nos.1 and 4 caught hold the victim and accused no.2

was hurling abusive language and was beating the victim and

then, upon intervention of the complainant, all the 4 accused

persons had gone away. It is further alleged that after

sometime, accused no.2 Mayuddin Shaikh came to the house

of the victim possession knife and caught hold him and gave

R/CR.A/423/2022 ORDER DATED: 18/04/2022

knife blows on left side of stomach and chest as also on the

back side of head and the victim started bleeding profusely

and then, the victim was taken to hospital and was declared

dead by the doctor and thus, upon the aforesaid allegations, a

police complaint came to be registered. It appears that

investigation was started by the Investigating Officer and after

recording the statements of the witnesses and preparing

panchnama and collecting postmortem report, chargesheet

was filed before the concerned Court and Section 3(2)(ii) of the

Atrocities Act was dropped. Further, it appears that incident

took place in 2 different parts on 2 different times. In the first

part of the incident, the appellant and co-accused persons

gave kick and first blows to the deceased and thereafter, left

the place of the incident. Thereafter, co-accused came at the

place of the offence and gave certain blows with knife to the

deceased when present appellant was not present. Further, it

appears from the police papers produced on record, weapon

was recovered at the instance of the Mayuddin during the

investigation and his clothes were also found with bloodstain.

There is no recovery or discovery from the present appellant

nor any bloodstain on the clothes of the appellant were found.

This Court has also considered the statement of sister of the

R/CR.A/423/2022 ORDER DATED: 18/04/2022

present appellant. From the record and police papers placed

on record, not a single blow was given by the present

appellant nor any weapon was used by him in commission of

the alleged offence in question. Chargesheet is already field by

the prosecution and therefore, custody of the present

appellant would not be required till the final disposal of the

trial. There is no criminal antecedent against present

appellant. Looking to the nature of the offence and

participation of the present appellant in the alleged offence

and considering the nature and gravity of assertion made

against the appellant and in the facts and circumstances of

the case and considering the nature of allegations made

against the appellant in the First Information Report as well as

considering the role of present appellant in the alleged offence,

this Court is of the considered opinion that this is a fit case to

exercise the discretion in favour of present appellant by

enlarging him on regular bail and hence, the prayer sought for

by the present appellant requires consideration. Hence, this

Court is of the view that present appeal deserves consideration

In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 08.02.2022 passed by

learned 2nd Additional Sessions Judge, Bharuch shall be

R/CR.A/423/2022 ORDER DATED: 18/04/2022

quashed and set aside. The appellant is ordered to be

enlarged on regular bail on furnishing a bond of Rs. 10,000/-

with one surety of like amount to the satisfaction of the trial

Court and subject to the conditions that appellant 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 India without prior permission of the concerned Trial Court;

[e] furnish the present 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 this Court;

7. The authorities will release the appellant 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 lower Court having jurisdiction to try the

R/CR.A/423/2022 ORDER DATED: 18/04/2022

case. It will be open for the concerned Court to delete, modify

and/or relax any of the above conditions, in accordance with

law.

8. At the trial, the Trial Court shall not be influenced by the

prima facie observations made by this Court in the present