Ratnabhai Rughnathbhai Rabari vs State Of Gujarat
2023 Latest Caselaw 8588 Guj

Gujarat High Court

Ratnabhai Rughnathbhai Rabari vs State Of Gujarat on 12 December, 2023

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     R/CR.MA/19539/2023                                   ORDER DATED: 12/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 19539 of 2023
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                          RATNABHAI RUGHNATHBHAI RABARI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR BHARGAV BHATT SR ADVOCATE with
MR KISHAN R CHAKWAWALA(9846) with
MR. MANAN S DOSHI(9795) for the Applicant(s) No. 1

MR ZUBIN BHARDA, ADVOCATE with
MS NIMISHA J PAREKH(8015) for the Respondent(s) No. 1

MR JK SHAH APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY

                                    Date : 12/12/2023

                                     ORAL ORDER

1. The applicant has filed this Application under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with FIR being I-C.R.No.11206020220655 of 2022 lodged with Kadi Police Station, District Mehsana for the offences under Sections 302, 307, 325, 324, 323, 143, 147, 148 and 149 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

2. Heard learned advocate Mr.Bhargav Bhatt

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appearing for the applicant. He submitted that the alleged incident had taken place on 15.07.2022 at around 9 O'clock in the morning for which the FIR came to be registered on 16.07.2022 at around 23:30 hrs. at night. Thus, the FIR in question has been lodged after considerable delay and no plausible explanation is coming forward for the said delay from the FIR. He submitted that before the incident, the deceased were taken to Bhagyoday General Hospital at Kadi where both the deceased had given history that they were assaulted by a mob of around 50 unknown persons. None of the deceased have named the applicant or any other accused persons in the history given by them before the doctor. He further submitted that the first informant, who is projected to be the eye-witness by the prosecution, does not appear to have witnessed the incident in question. He further submitted that there are material contradictions in the case of prosecution which go to the root of the matter and weaken the case of the prosecution. The applicant has been arrested in connection with present offence on 04.08.2023 and since then the applicant is in

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judicial custody. The investigation is over and charge- sheet is also filed. He further submitted that other co- accused have been considered by co-ordinate Bench of this Court for grant of regular bail and, therefore, on the ground of parity also applicant is entitled to be enlarged on bail. He, therefore, submitted to allow the present application subject to suitable conditions.

3.1 This application is opposed by learned Additional Public Prosecutor Mr.J.K.Shah appearing for the respondent State. He submitted that one of the deceased has given dying declaration clearly implicating the present applicant in the offence in question. There are other eye-witnesses including the first informant who also named the present applicant having actively participated in the offence in question.

3.2 He also submitted that the present case pertains to the double murder. The present applicant along with other co-accused had assaulted the deceased in cruel manner and both the deceased persons had sustained severe injuries and had succumbed to the same. He

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also submitted that there are injured eye-witnesses to the incident who have clearly indicated the role played by the present applicant in commission of offence. One of the said witnesses has also given Dying Declaration and in the said Dying Declaration, a specific role has been attributed to the applicant in commission offence in question. He , therefore, submitted to dismiss the present application.

4.1 Learned advocate Mr.Bharda appearing for the original first informant has opposed the present application contending that prior to the present incident, the first informant had given an application to the Police Inspector, Kadi Police Station on 15.04.2022 wherein it was alleged that present applicant and the other co-accused persons had come to their land with JCB machines and other vehicles and had threatened the first informant and other witnesses who were present at the place. Thus, the applicant and other co-accused persons were bent upon to see that first informant and his family members vacate the land in question so that they can usurp the

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said land. The applicant and other co-accused person had clear motive for commission of offence in question. He further submitted that the Dying Declaration of Raijibhai has been recorded during the course of investigation. He is the witnesses who sustained injuries in the incident in question. He in his Dying Declaration has clearly stated that the present applicant was one of the accused who assaulted the deceased. Further, one of the deceased Gautambhai also, in his Dying Declaration, had attributed specific role to the applicant in commission of offence.

4.2 He further submitted that after the alleged incident had taken place, efforts were made by the relatives of the deceased to call the police. However, the police did not come in time and, therefore, no narration of the incident could be given to the police in time. The present applicant and co-accused had created such a threat that none of the witnesses or any of the resident of village may ready and willing to help the deceased and other victims. He further submitted that merely because there are some lacuna

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in the case of the prosecution, the benefit of the same should not go to the present applicant and other co- accused and they should not be enlarged on regular bail by this Court. He further submitted that so far as the aspect of delay is concerned, satisfactory explanation for the same is coming forward from the FIR itself. He, therefore, submitted to dismiss the present application.

5.1 As per the case of the prosecution, alleged incident had taken place on 15.07.2022 at around 9 O'clock in the morning. The FIR, in that regard, came to be lodged by the first informant on 16.07.2022 at around 2330 hrs i.e. after a period of more than 24 hours from the time of incident. The FIR in question has been given by one Pravinbhai Badrinarayan Somnath Shukla who happens to be the real brother of the deceased. As per the facts narrated in the FIR, the first informant received a phone call on 15.07.2022 at around 8 O'clock in the morning from his brother Arvindbhai that his deceased brothers and labourer Raijibhai were assaulted by the present applicant and

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other accused persons. It is required to be noted, at this stage, that as per the case of the prosecution, the alleged incident had taken place at around 9 O'clock in the morning whereas as per the first informant he had received phone call from his brother at around 8 O'clock in the morning i.e. prior to the time of incident. The first informant further states in his FIR that after receiving phone call from his brother Arvindbhai at around 8 O'clock, he left from Ahmedabad and reached at scene of occurance where he saw his deceased brothers were being assaulted by the present applicant and other co-accused. He, therefore, along with his son, had left the scene of offence. It is required to be noted, at this stage, that this conduct on the part of first informant of moving away from the place of incident after having witnessed the incident, does not inspire confidence. A prudent man, who has witnessed such ghastly incident happening with his real borthers, would have first intervened to rescue his brothers and thereafter would have immediately rushed to the police station for lodging the FIR. None of these sort of appear to have

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been done by the first informant.

5.2 The record also indicates that there were disputes going on between the family of the deceased and the accused persons as regards some agricultural lands and civil litigations were also going on between the parties.

5.3 As per the case of the prosecution alleged incident had taken place at around 9 O'clock in the morning on 15.07.2022 and the FIR came to be lodged on 16.07.2022 at around 2330 hrs. The first informant has tried to explained the delay caused in lodging the FIR by stating that the police had gone to hospital at Kadi as well as to K.D.Hospital at Ahmedabad for registering the FIR, however, since both the deceased were unconscious at the relevant point of time the police did not register the FIR. It is required to be noted that along with deceased, witness Raiji had also sustained injuries in the incident and he was also a witness to the incident. It appears that on 15.07.2022 at around 1514 hrs, the police had approached him, however, he declined to give any statement / lodge FIR in the present case. The first informant has also chosen to

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remain silent till the time the FIR in question was registered.

5.4 The record also indicates that after the incident, the deceased were taken to Bhagyoday Hospital at Kadi where they themselves had given history before the doctor stating that they were assaulted by a mob of around 50 unknown persons. From the record, it also appears that accused persons and the deceased were knowing each other and several disputes were going on between them. Despite the same deceased did not name any of the accused persons in the hospital before the doctor. This creates doubt about the involvement of the accused persons in the offence in question. The delay caused in lodging the FIR has not been satisfactorily explained by prosecution. As per the case of the prosecution itself there were several eye- witnesses to the incident and, therefore, it was incumbent upon these eye-witnesses to lodge the FIR at once after the incident. However, for the reasons best known to the prosecution, FIR came to be lodged only on 16.07.2022 at around 2330 hrs. This creates

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doubt about the genuineness of the allegations levelled against the applicant in the FIR.

5.5 The prosecution seeks to rely upon the dying declaration given by deceased Gautambhai. He, in his dying declration, stated that the present applicant was one of the agressors. He, however, does not state the role played by the present applicant in assaulting him. Moreover, this dying declaration has been registered on 30.07.2022 i.e. after the FIR was registered. The very deceased, in the history given by him to the doctor at Bhagyoday Hospital, Kadi has not named any of the accused person for having assaulted him.

5.6 Learned advocate Mr.Barot appearing for the first informant seeks to rely upon the judgment of Hon'ble Apex Court in the case of Ajwar vs. Niyaj Ahmad (supra) wherein the Hon'ble Apex Court has observed that when considering the bail application, the Court is duty bound to consider seriousness and gravity of crime, role attributed to the accused, likelihood of witnesses being tampered with if bail is granted, likelihood of accused not being available if the bail is

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granted, criminal antecedents of the accused etc. This Court has taken all these aspects into consideration and when the genuineness of the allegations levelled in the FIR is found to be doubtfull, the benefit of the same should go to the present applicant.

6. Considering the above aspects, the present application deserves consideration and accordingly stands allowed. The Applicant Accused is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that the applicant shall:

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

             (b)          maintain law and order and not to





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        indulge in any criminal activities.
        (c)          furnish   the       documentary          proof           of
        complete,         correct     and      present     address            of

residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change the residence without prior permission of the trial Court.

(d) provide contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.

(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.

(f) not leave India without prior permission of the Trial Court

(g) surrender passport, if any, to the Trial

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Court within a week. If the Applicants do not possess passport, shall file an Affidavit to that effect.

7. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.

8. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if the Applicant is not required in connection with any other offence for the time being.

9. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

10. Rule is made absolute. Direct service permitted.

(M. R. MENGDEY,J) MISHRA AMIT V.