Vijay Rajubhai Mane vs State Of Gujarat
2022 Latest Caselaw 443 Guj

     R/CR.A/1206/2021                                ORDER DATED: 13/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1206 of 2021

==========================================================
                              VIJAY RAJUBHAI MANE
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MR A R DWIVEDI(11319) for the Appellant(s) No. 1
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MS. ALKA B VANIYA(6945) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                 Date : 13/01/2022

                                  ORAL ORDER

1. The appellant preferred one Criminal Misc. Application No.

3865 of 2021 after charge-sheet before the Court of learned 8 th

Additional Sessions Judge and Special Atrocity Judge, Surat u/s. 439

of the Code of Criminal Procedure, 1973 requesting to enlarge the

appellant on regular bail on account of offence being registered vide

C.R. No.11210012210944 of 2021 with Chowkbazar Police Station,

Surat City for the offence punishable u/s. 324, 325 and 326 of the

Indian Penal Code and u/s. 3(2)(5) and 3(2)(5-A) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for

short "the Atrocities Act") as well as u/s. 135 of Gujarat Police Act

R/CR.A/1206/2021 ORDER DATED: 13/01/2022

wherein, the learned learned 8th Additional Sessions Judge and

Special Atrocity Judge, Surat rejected the said application on

26.07.2021.

2. Feeling aggrieved by the said order, the appellant preferred

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

3. Heard learned advocate for the appellant, learned advocate for

the respondent No.2 and learned APP for the respondent-State.

4. Learned advocate for the appellant has submitted that

allegations made against the appellant are baseless and without any

evidence. That he is an innocent person and not involved in the

offence directly or indirectly as stated by the complainant in the

complaint. That alleged crime said to be occurred on 09.05.2021

while FIR was lodged on 15.05.2021 after delay of six days without

any reasonable explanation. It is further submitted that FIR has been

lodged by the injured victim and in the FIR it has been categorically

stated by the complainant that after primary treatment he was shifted

at home, which proves that the injury sustained by the complainant

is not that much grievous as alleged. That appellant is aged about 25

years old boy and he is the only bread winner in the family and his

parents are dependent upon him. Hence, it was requested by learned

R/CR.A/1206/2021 ORDER DATED: 13/01/2022

advocate for the appellant to quash and set aside the impugned

judgment and order 26.07.2021 passed by learned 8th Additional

Sessions Judge and Special Atrocity Judge, Surat in Criminal Misc.

Application No. 3865 of 2021 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 objected the

arguments advanced by learned advocate for the appellant and

submitted that in a brutal manner, victim was stabbed with life

threatening weapon on the back by the present appellant. That with

an intention, appellant has used life threatening of knife making stab

on the back of the complainant and beaten him which has resulted

serious fracture to his spinal cord and due to which he is in bed

ridden for life and unable to walk in future. It is further submitted

that weapon knife was used by the appellant in commission of the

offence, which was recovered from him as per the details of the

panchnama. That prima facie, involvement of the appellant is

established from the case papers of the prosecution and he cannot be

released on bail as prayed for. That statements of the eye witnesses

are also recorded in support of the prosecution case. Hence, it is

requested by learned APP for the respondent-State as well as learned

R/CR.A/1206/2021 ORDER DATED: 13/01/2022

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, it appears that alleged offence was

committed on 09.05.2021 near Sai Baba Temple. At the place of the

offence, friend of the complainant namely Rakesh and present

appellant were disputing in connection with a one matter. The

complainant tried to intervene in their dispute, at that time, present

appellant removed a knife from his pent and gave two blows on the

back side of his body, and therefore, complainant fell down there. In

scuffle taken place, he had received an injury on finger of his hand,

and thereafter, the present appellant ran away from the place of the

offence. Primary treatment was given to the complainant in the

Smimer Hospital and thereafter, primary settlement was also arrived.

After passing of one year, the complainant suffered grievous pain at

the spot of the injury, and therefore, he was further treated in Jainab

Hospital at Ramdev. Later on, it was found from the report that there

was fracture on 10 to 11 spinal code. Hence, this complaint was

registered. If we accept the entire complaint lodged by the

respondent No.2, not a single word was used by him attracting any

R/CR.A/1206/2021 ORDER DATED: 13/01/2022

provisions of the prevention of Scheduled Caste or Scheduled Tribe,

1989. It further appears that later on, Investigating Officer has

added Section 325 of the Act as well as Section 326 of the I.P.C.

From the contents of the complaint, prima facie, intention of the

appellant in committing murder of the complainant is missing. As

per the submissions made by learned APP appearing for the

respondent-State, complainant is suffering from Paralysis on his two

legs and there is no possibility of recovery in future as he cannot

walk. One certificate dated 20.11.2021 issued by Surat Municipal

Institute of Medical Education & Research (Smimer), Surat is

produced on record, which shows that injuries shown in the

certificate are not in serious nature. As per the history given by the

complainant, assault was made by one unknown person by knife at

Vijaynagar on 09.05.2021 at 2:30 p.m. No name of the appellant was

disclosed by the respondent No.2 before the doctor at the time of

admitting him in hospital.

7. Considering the nature of offence and the documents, it further

appears that on 24.11.2021, the complainant was examined by Dr.

Milan Senjaliya, Neuro Surgeon at New Civil Hospital, Surat. As

per his opinion, patient has weakness in both legs with more effect

R/CR.A/1206/2021 ORDER DATED: 13/01/2022

on left leg. Patient was not bale to walk without support. Post

traumatic residual para-paresis due to spinal coral edema. This may

improve in future with physiotherapy, but patient is likely to have

residual permanent paresis in both legs. It was subsequent certificate

issued by Dr. Milan Senjaliya, Neuro Surgeon of New Civil

Hospital, Surat, injury caused to the respondent No.2 and other

aspect may be decided during the course of the evidence likely to be

produced by the prosecution in a trial.

8. Considering the facts of the present case, according to this

Court appellant is entitled to claim for bail. Hence, this Court is of

the view that present appeal deserves consideration.

9. In the result, present Criminal Appeal is allowed and the

impugned judgment and order 26.07.2021 passed by learned 8 th

Additional Sessions Judge and Special Atrocity Judge, Surat in

Criminal Misc. Application No. 3865 of 2021 is hereby 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;

R/CR.A/1206/2021 ORDER DATED: 13/01/2022

[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;

10. 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 case. It will be open for the concerned

Court to delete, modify and/or relax any of the above conditions, in

accordance with law.

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

prima facie observations made by this Court in the present order.

Notice is discharged.

Direct service is permitted.

(B.N. KARIA, J) SUYASH