Ravi Mohanbhai Parmar vs State Of Gujarat
2022 Latest Caselaw 8985 Guj

     R/CR.MA/7373/2022                           ORDER DATED: 11/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 7373 of 2022

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                         RAVI MOHANBHAI PARMAR
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
MR RUCHIT J VYAS(10687) for the Respondent(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 11/10/2022

                              ORAL ORDER

1. Rule. Learned APP waives service of notice of

rule on behalf of respondent State. By consent, Rule is

fixed forthwith.

2. This application has been filed under section

439 of the Code of Criminal Procedure for regular bail in

connection with FIR being C.R. No.A-11208037210949 of

2021 registered with Kuvadva Road Police Station, Rajkot

City for offences punishable under sections 302, 504, 323,

143, 147, 148 of the IPC and section 135 of the G.P. Act.

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

3. Mr. Vicky B.Mehta, learned advocate for the

applicant submits that, no case under section 34 and

120B has been alleged in the FIR, while the whole

sequence of the incident suggests that the deceased

accompanied with complainant had gone to the mutton

and fish shop of the accused - Aslamsha Fakir and

Kadarsha Fakir to rebuke them since, it was alleged that

because of the shop, the harassment of dogs has

increased, as the dog has bitten the deceased's uncle -

Samatbhai Zapda, and it is alleged that forming unlawful

assembly, all the accused had given kick and fist blows to

the complainant's brother - deceased Chhaganbhai.

Accused - Aslamsha Fakir, Kadarsha Fakir, Gulam

Hussain and the present applicant, all of them had caught

hold of the deceased - Chhaganbhai from behind and

friend of Aslam, Dharmesh Parmar removed the knife

from his waist and gave a blow on stomach of deceased -

Chhaganbhai.

3.1 It is stated that, another brother of the

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

complainant Sagram intervened and accused - Dharmesh

had also assaulted him, but as he resisted with his hand,

got a simple injury, and thus as per the allegation,

Chhaganbhai succumbed to death.

3.3 Mr. Mehta submits that none of the

ingredients of sections 143, 147 and 148 of the IPC would

get attracted in connection with the present applicant,

since they had no common object for assembly. Mr.

Mehta submits that except accused no.4, none of the

other accused were alleged to have been carrying any

weapon; and further the co-accused were not aware of

any weapon with the accused no.4.

3.4 Referring to the cross-complaint being FIR

No.11208037210951 of 2021, Mr. Mehta submits that,

Kadar Shah had given the complaint and as per the cross-

complaint, the deceased had come with sickle in his hand,

and had stated that, 'because of your mutton shop, there

was harassment of dogs and states that his uncle was

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

bitten by the dog at his shop', and it is alleged that

deceased started quarreling and he gave a blow with

sickle on the head of the Aslam and it is submitted that,

he was taken for treatment and as per recovery

panchnama of the clothes of Aslam, the panchas had

noted injury on the head of Aslam, which was treated by

Doctor with stitches and when the same was asked in

presence of panchas, he had informed that deceased

Chhaganbhai has beaten him with sickle on his head and

he had taken treatment from Rajkot Government

Hospital. The clothes, which he has worn at the time of

incident, were given in presence of panchas, and thus,

Mr. Mehta submitted that it is stated in the complaint

that the deceased had come with sickle and therefore all

the accused out of the utter caution had restrained the

deceased to commit any offence, but in the process Aslam

Shah received injuries. Mr. Mehta submits that in

retaliation, it appears that, co-accused Dharmesh must

have given a single blow with his knife in the stomach

area, which had turned fatal. It was, therefore, prayed

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

that the present application may be allowed and the

applicant herein may be released on regular bail.

4. Mr. Pranav Trivedi, learned Additional Public

Prosecutor assisted by Ruchit Vyas learned advocate for

the complainant, relied on the observation of the Hon'ble

Supreme Court in the case of (i) Nitu Kumar Vs.

Gulveer & Anr. in Criminal Appeal No.1547 of 2022 (ii)

this Court's observation in Criminal Misc. Application

No.12532 of 2021 and the judgment in case of (iii)

Laxman Prasad Pandey Vs. State of Uttar pradesh

and Another, reported in 2021 SCC Online SC 1224,

submitted that all the accused including the present

applicant had facilitated the accused Dharmesh parmar in

giving the fatal blow on the stomach with the very

intention to kill him; and further states that no reliance

could be placed on the cross-complaint, since it is an

afterthought explanation of the offence committed by all

the accused, and further submits that FIR is against the

deceased person.

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

4.1 Mr. Trivedi assisted by Mr. Vyas states that,

main act of the present applicant along with others of

having caught hold of the deceased, had assisted the

main culprit to have given a blow. Had it not been so,

learned APP submitted that there would not have been a

case of murder, it was a pre-mandated act and therefore

urged that all the accused are equally liable for the

offence. It was, therefore, prayed that no discretion may

be exercised in favour of the applicant.

5. Heard learned advocates on both the sides and

perused the material on record. The facts of the

prosecution case suggests that the deceased and the

complainant, had gone to the mutton and fish shop of

Aslamsha Fakir and Kadarsha Fakir with intention to

rebuke them realizing that it was because of the shop

there was risk of dog bites, showing the cause of such an

incident with his uncle Samatbhai; he had approached the

shop and during this process, it is alleged that, all the

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accused had beaten the deceased.

5.1 While the cross-complaint suggests that the

deceased had come with the sickle and had verbal

altercation, which continued as a quarrel and thereafter,

it is alleged that deceased had given a blow on the head

of Aslamsha with sickle and during the scuffle, as per

cross-complaint, Dharmesh had given a knife blow on the

stomach area of the deceased and thus he failed down.

5.2 The sequence of the incident suggests that it

was the deceased and complainant, who had gone to the

mutton and fish shop. The present applicant was at the

mutton shop and it is stated that he was friend of co-

accused and all of them had caught hold of the deceased,

but the cross-complaint and the injury, which have been

observed during the panchnama of Aslam Shah, suggests

that the deceased had also inflicted blow, but such fact

was not noted in the FIR given by the complainant, and as

per the case, no injury has been caused by the applicant.

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

Taking into consideration the nature of allegation, this

Court finds this to be a fit case where discretion could be

exercised in favour of the applicant.

6. Hence, the present application is allowed. The

applicant is ordered to be released on regular bail in

connection with FIR being C.R. No.A-11208037210949 of

2021 registered with Kuvadva Road Police Station, Rajkot

City 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;

[d] not leave India without prior permission of the

R/CR.MA/7373/2022 ORDER DATED: 11/10/2022

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;

7. 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.

8. 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.

(GITA GOPI,J) Pankaj