Imtiyaz Hanif Kasmani vs State Of Gujarat
2022 Latest Caselaw 7114 Guj

   R/CR.MA/12961/2022                           ORDER DATED: 10/08/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 12961 of 2022

================================================================
                        IMTIYAZ HANIF KASMANI
                                Versus
                          STATE OF GUJARAT
================================================================
Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR P B KHANDHERIA(5228) for the Respondent(s) No. 1
MR PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
================================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                           Date : 10/08/2022
                            ORAL ORDER

1. Leave to amend Paragraph 2 of the application.

2. This application (successive) has been filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with the First Information Report being C.R. No.A/11189003202218 of 2020 registered with 'A' Division Morbi City Police Station, Morbi for the offences punishable under Sections 302, 307, 324, 504, 506(2), 143, 147, 148, 149 and 34 of the Indian Penal Code, under Sections 37(1) and 135 of the Gujarat Police Act and under Sections 25(1-b)

(a) and 27 of the Arms Act.

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

3. Learned Advocate for the applicant submitted that the present application has been moved on the basis of the liberty granted in the order dated 11.04.2022 passed in Criminal Miscellaneous Application No.22876 of 2021. Learned Advocate for the applicant has referred to the relevant observations of the order at Paragraph 2, which is as under :-

"It is submitted that the ballistic report is still awaited; thus, at this juncture, learned advocate Mr. Virat Popat proposes to withdraw the application. The application stands disposed of as withdrawn with the liberty granted to move bail application after receiving the ballistic report. Rule is discharged."

4. In view of the above order dated 11.04.2022, the applicant was permitted to move a bail application on receipt of the Ballistic Report. Copy of the same has been produced alongwith this application.

5. Learned Advocate for the applicant Mr. Virat G. Popat submits that in the Ballistic Report, the alleged weapon which has been attributed to have been recovered from the present applicant is a pistol of 9mm. The FSL Report confirms the fact that the weapon recovered from the present applicant is not

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

capable of firing a 7.65mm round. It is also submitted that the weapon does not connect the applicant with the alleged act since the weapon was never used at the time of the offence while the applicant himself sustained about 6 incised wounds and the CT Scan report of the Chest was taken and the NCCT Scan of the upper abdomen suggests penetrating injury, III-defined fat stranding was seen along greater curvature of stomach adjacent to diaphragmatic rent, suggesting possibility of stomach injury. The operation of the applicant was conducted twice on 20.12.2020 and another operation was conducted on 28.12.2020 and the applicant was kept on ventilator support till 22.12.2020. The Injury Certificate dated 03.02.2021 points to about 3 incised wounds. After the third operation, the applicant was transferred to Krishna Multispeciality Hospital, Morbi and as per the Discharge Summary of Krishna Multispeciality Hospital, Morbi, the applicant was discharged on 23.02.2021. Therefore, for about two months the applicant was in hospital undergoing treatment. The record also suggests that 4 of the accused had also suffered serious injuries as per the

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

certificate produced on record and out of the 4, one succumbed to the injuries. It is further submitted that the father of the applicant had also received about 6 incised wounds and operation was also performed on him on 20.12.2020 and 21.12.2020 and he was on ventilator support till 22.12.2020 and the father was later discharged from the hospital on 13.01.2022 and after the father's discharge from the hospital, he was murdered by the other side and a complaint was registered on 08.04.2022 by the cousin of the present applicant. It is submitted that the complainant of the present First Information Report - Rafikbhai Rajakbhai Mandavia alias Lokhandwala has been arraigned as accused under the Control of Terrorism and Organized Crime Act, 2015. Learned Advocate Mr. Virat Popat while praying for bail stated that the FSL Report concludes that the alleged weapon was never used by the appellant at the place of offence. Learned Advocate Mr. Popat read minute details of the Report to press the conclusion drawn by the FSL Department.

6. The FSL Report and the forwarding letter (Ravangi Nodh) reflects Mark E-3 the pistol with Mark

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

No.11171 to be seized from the present applicant, which has been with a questionnaire as to whether Mark E-3 was in a live condition and whether the cartridge of A-7 to A-14, B-7, B-8, D-3 bears any consistency or similarity and whether there was any presence of gun powder or blood stains and if so, the blood group if at all and for any other facts to be reported. The FSL Report for Mark E-3 noted the pistol of 9mm calibre with a chamber having the capacity for firing country made magazine as semi automatic pistol. The said sample was prior to the Laboratory Test firing of the said sample E-3. After the wash and chemical analysis of the material and the lead present, after the use of the bullet the presence of nitrate and lead was found and it was concluded that the pistol was used for firing prior to having been received in the laboratory and it was observed that the said sample A/3 pistol was of 9mm calibre whereas sample A-16, A-17, B-7, B-8, D-9 were having 7.65mm calibre and therefore, it was observed that no similarity exists in sample E-3 pistol to be on par to the other bullets as were of different calibre.

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

7. While vehemently countering the arguments of learned Advocate Mr. Virat G. Popat, learned Additional Public Prosecutor Mr. Pranav Trivedi alongwith the learned Advocate for the complainant Mr. P.B. Khandheria who even filed written submission submitted that there has been no change in the facts situation nor is there any change in ground. It is further submitted that the accused by using the firearm have caused injury to the deceased and other co-accused. Referring to the cross case, it is submitted that no fatal injury has been caused while the present applicant with his fire arm has caused fatal injury which can be inferred from the ballistic report. Therefore, no parity can be extended in favour of the present applicant with the accused of cross case. It is further submitted that the eye witness has stated about the pistol being used by the present applicant. The fire arm injury was caused on the vital part of the deceased which had been shot from the pistol held by the applicant herein.

8. Learned Advocate Mr. P.B. Khandheria has relied on

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

Paragraph 12 of the judgment of the Hon'ble Apex Court in the case of Mahipal v. Rajesh Kumar @ Polia reported in 2020 (2) SCC 118 which reads as under :-

"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub- serves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail."

It is submitted that the Court should be slow in granting bail and should not entertain the application making detailed analysis of the evidence.

9. Learned Additional Public Prosecutor submitted that

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

considering the fatality caused, no discretion may be exercised in favour of the applicant.

10. Heard learned Advocates appearing for the respective sides and perused the material on record. This is a cross case, First Information Report bearing No.I-2218/2021 was filed and therefore, the First Information Report bearing No.I-2219/2021 came to be lodged which is concerning the present matter. In First Information Report bearing No.I-2218/2021, 11 are shown as accused, while in the cross case, 9 of them are shown as the accused. In the present case, for 3 of the accused, pistol is attributed to one accused, another accused with a wooden log and an iron pipe to another one. The First Information Report bearing No.I-2218/2021, the incident is shown in two parts, one is the initial incident started in neighbour, which continued, the later part of the continuation of the offence is shown in the hospital. While it is reported that pistol A-16 and A-17 was used at the place of offence and the material was collected from the place of offence, it also suggests that A-16 and A-17 was used at the place of offence

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

and the bullets of B-7 and B-8 were found from the body of deceased. While no evidence has been brought on record to suggest that the pistol at sample A-3 was used at the place of offence. The Assistant Incharge Directorate of Forensic Science cum Assistant Chemical Examiner, Government of Gujarat, Gandhinagar has observed in the Report that both bullets which were in sample E-3, were successfully test fired by them, while the bullets which were found from sample, A-16, A-17, B-7, B-8, D-3 were of 7.65mm calibre while the bullet in the pistol alleged to have been used by the present applicant is of 9mm calibre. Hence, the material that was collected from the place could not be in similarity with the weapon that was alleged to be used by the applicant.

11. In the First Information Report bearing No.I- 2219/2020, 9 accused are arraigned and out of them, 4 were alleged to be welding a knife, one with a dharia, one with a sword and one with an iron pipe. The applicant sustained injuries which had led him to deal with operations and was hospitalized for almost

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

two months. Nothing has been brought on record by way of the ballistic report that the weapon so allegedly used by the applicant was fired at the place of the incident. Considering the nature of weapons used by the accused involved in both the cases, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant.

12. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the First Information Report being C.R. No.A/11189003202218 of 2020 registered with 'A' Division Morbi City Police Station, Morbi on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he 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;

R/CR.MA/12961/2022 ORDER DATED: 10/08/2022

[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 the concerned trial court;

13. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, 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 lower Court having jurisdiction to try the case.

14. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.

Sd/-

(GITA GOPI, J) CAROLINE