Sahdev @ Dhudho Jivabhai Bavalia vs State Of Gujarat
2022 Latest Caselaw 7131 Guj

   R/CR.MA/11171/2022                                 ORDER DATED: 17/08/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 11171 of 2022

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                   SAHDEV @ DHUDHO JIVABHAI BAVALIA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 17/08/2022

                               ORAL ORDER

1. This application under Section 439 of the Code of Criminal Procedure is for grant of regular bail to the applicant in connection with the FIR being C.R.No.11211010210108 of 2021 registered with Chuda Police Station, Dist. Surendranagar, for the offence punishable under Sections 302 and 120 (b) of the Indian Penal Code ("IPC" for short).

2. Heard Mr.Virat Popat, learned counsel for the applicant and Mr. Manan Mehta, learned APP for the State.

3. Brief facts leading to filing of present application are that, FIR is lodged on 03.08.2021 at Chuda Police Station against the principal accused Ajit Kalabhai, stating therein that, when the deceased Ranubhai Merubhai passing on rough road going towards village Bhanejada was fatally hit by Xylo car, alleged to have been driven by principal accused Ajitbhai, with an intention to kill him. The motive was to take revenge of murder of one Mansukhbhai Kadvabhai, who happened to be the uncle of principal accused as Mansukhbhai was killed by the deceased and others. The principal accused apprehended

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in the alleged offence as against him sufficient evidence involving the act of murder is found. During the investigation, upon analysis of call details of the main accused, it was revealed that, on the day of incident, they made conversation thrice and as per the prosecution case, the main accused had called the present applicant and directed to give some input with regard to movement of the deceased and therefore, the applicant being a part of criminal conspiracy hatched by the principal accused to kill the deceased, investigating agency apprehended the applicant in the alleged offence. In such circumstance, the principal accused Ajitbhai and applicant herein chargesheeted for the aforesaid offence. Regular bail application of the applicant filed before the Sessions Court came to be rejected vide order dated 08.06.2022. Aggrieved with the impugned order, present application has been preferred before this Court.

4. Learned counsel Mr. Virat Popat for the applicant submitted that, it is the case of prosecution that, main accused Ajitbhai had intention and motive to murder the deceased as deceased was accused in murder of Mansukhbhai Kadvabhai, who was uncle of the principal accused and therefore, to take revenge, speeding xylo vehicle was dashed with the deceased when he was passing on the road as referred in the FIR and the vehicle was driven by the principal accused. He further submitted that, the allegation levelled against the applicant to the effect that the main accused called the applicant and instructed to watch the movement of the deceased, for which they were in touch on their cell phones. It is in this background facts, he submitted that, the applicant and principal accused being resident of the same village are known to each other and therefore, their conversations on

R/CR.MA/11171/2022 ORDER DATED: 17/08/2022

mobile phones would not infer that, the applicant was part of the criminal conspiracy hatched by the main accused, as there is no material worth the name to indicate that, in any manner, the applicant was involved in execution of the alleged conspiracy to kill the deceased. He further submitted that, the applicant was neither present at the scene of offence, nor in any way found in the CCTV footage and nor his name has been disclosed by the complainant. Thus, placing reliance on the judgment of Supreme Court rendered in the case of Jayendra Saraswathi Swamingal Vs. State of T.N [2005 (2) SCC 13], to submit that, merely a statement of the principal accused involving the applicant which is weak piece of evidence, cannot be used against the accused.

5. In view of the aforesaid contentions, learned advocate for the applicant submitted that, the applicant is totally innocent and has been falsely involved in the present case and keeping him behind the bar would nothing, but a pre-trial punishment and therefore, considering the role attributed to the applicant herein, discretion may kindly be exercised in favour of the applicant.

6. On the other hand, opposing the bail application, learned APP Mr. Manan Mehta, submitted that, there is reasonable ground to believe that the accused applicant has committed the offence. He further submitted that, the contentions raised by the ld. Counsel for the applicant to be tried by the trial court and at the bail stage, it cannot be looked into. In such circumstances, learned APP prays that, considering the nature and gravity of accusation and severity of punishment in the event of conviction, no case is made out for exercising discretion.

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7. Having considered the rival contentions raised by the counsel for the respective parties and upon perusal of the chargesheet case papers, it appears that, initially the main accused Ajitbhai apprehended in the alleged offence as, as per the prosecution case, he had a motive to eliminate the deceased who was involved in murder of his uncle. Upon analysis of call details of the main accused and during his interrogation, it revealed that, the applicant herein was entrusted the job to watch the movement of the deceased, so that, the main accused could execute the murder. It is no doubt true that, except three calls and statement of main accused, nothing incriminating material found against the applicant herein to link him in the alleged conspiracy. It is settled by catena of deceased of the Apex Court that, confession of co-accused is very weak type of evidence and it does not come within the definition of evidence contained in Section 3 of the Evidence Act and it cannot be made the foundation of a conviction. In the facts of the present case, both the accused are residing in the same village and therefore, they might be entered into conversation on the day of the incident. According to the prosecution case, three calls were made on different times by the principal accused. It is pertinent to note that, except three calls alleged to have been made on the day of incident, other call details prior to the incident have not been pointed out by the prosecution.

8. For the foregoing reasons, considering the role attributed to the present applicant and evidence in support of the charge, this Court is of view that, case is made out for regular bail and accordingly, without expressing on merits of the case, when the applicant does not have any criminal history and he is in custody since 01.04.2022, I deem it fit to enlarge the

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applicant on regular bail.

9. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No.11211010210108 of 2021 registered with Chuda Police Station, Dist. Surendranagar, on executing a personal bond of Rs.10,000/- (Rupees Ten thousand only) each, with one surety of the like amount to the satisfaction of the learned 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 injuries 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 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;

10. 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 concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not

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be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted

(ILESH J. VORA,J) SUCHIT