Vikrambhai Bhikhubhai Khachar vs State Of Gujarat
2023 Latest Caselaw 8126 Guj

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       R/CR.A/2381/2023                               ORDER DATED: 08/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
                        2381 of 2023
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                          VIKRAMBHAI BHIKHUBHAI KHACHAR
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR.SANAT B PANDYA(6976) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                  Date : 08/11/2023

                                   ORAL ORDER

1. By way of present appeal under Section 14A of the Prevention

of Atrocities Act read with Section 439 of Cr.P.C, the appellant

accused has prayed to release him on regular bail in connection

with the FIR being C.R. No.11211010230097 of 2023

registered with Chuda Police Station, Surendranagar, for the

offences punishable under Sections 302, 396, 307, 326, 325, 335,

504, 506(2), 427, 120B. 201, 143, 147, 148 and 149 of Indian Penal

Code, 1860, Section 135 of the G.P.Act and Sections 3(1)(r), 3(1)(s),

3(2)(v), 3(1)(g) and 3(1)(f) of the Atrocities Act.

2. It is the case of the prosecution that the complainant having

ancestral property and the accused persons with a view to grab the

property, used to give threats to the complainant and other

witnesses and by keeping the grudge, the accused persons

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including the appellant formed an unlawful assembly and by

hatching conspiracy, made an assault with deadly weapons and

committed murder.

3. Learned counsel for the appellant submitted that the present

appellant is not named in the FIR and has falsely been arraigned as

an accused due to differences between the families of the

complainant and accused persons. The dispute was with regard to

the ancestral land. Even no specific allegation, which involves the

appellant in the alleged offence is there. Investigation is over and

chargesheet has already been filed. Nothing is required to be

recovered from the appellant. He also submitted that, the complaint

is filed with an ulterior motive and the appellant is having deep

roots in the society and if he is not released on bail, his life will be

ruined. He submitted that the appellant has no past antecedent. As

the chargesheet has been filed, Mr. Pandya has relied on the

judgment rendered by the Apex Court in the case of Sanjay Chandra

Vs. CBI, reported in (2012) 1 SCC 40 and stated that basic view of

bail is to ensure the presence of the accused in trial and therefore,

the appellant may be granted bail.

Mr. Pandya further submits that, the appellant is in custody

since 19.07.2023 and in such circumstance, further custody of the

appellant would not yield any fruitful purpose. In view of the same,

he has prayed to allow the present appeal and enlarge the appellant

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on bail.

4. Per contra, learned APP has vehemently opposed the appeal

and stated that the present appellant was a member of unlawful

assembly and by hatching criminal conspiracy, made an assault with

deadly weapon. Nonetheless, in the said offence, two innocent

persons have lost their lives and three persons sustained injuries.

Test Identification parade is conducted in which the present

appellant is identified. Considering the role and conduct of the

appellant, this is not a fit case to exercise discretion in favour of the

appellant. She also submitted that, as the appellant has destroyed

the evidence from mobile phone, which was retrieved later on by

the investigating agency and FSL report is also confirmed that the

appellant has tampered the mobile phone. She also submitted that,

from the record, it clearly establishes that the appellant had called

accused persons to gather at one place and as a preplan, they

attacked on the complainant and witnesses with deadly weapons. It

is also submitted that the appellant is facing serious charge of

murder and therefore, considering the gravity of offence and

severity of punishment, no case is made out. Hence, she requested

to dismiss the present appeal.

5. Learned counsel appearing for the original complainant has

adopted the arguments made by learned APP and opposed the bail

application by contending that, the appellant is head strong person

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and if he is released on bail, there is potentiality to breach the

public tranquility. In such circumstances, he prays that the

application may not be entertained.

6. Considering the arguments canvassed by learned counsel for

the respective parties and material placed on record, it appears that

the complainant, deceased and witnesses are having ancestral land

and as the accused persons wanted to grab the said land,

threatened them and by keeping the grudge, they formed an

unlawful assembly at one place and then made an assault with

deadly weapons, in which, two real brothers were killed. Further,

from the TI parade, it reveals that the appellant was present in the

offence having stick with iron ring and he also made an assault. It is

proved that the accused being members of the unlawful assembly

with common object to snatch the possession of the land, made an

assault with deadly weapons. It is also to be noted that presence of

the appellant was very much found at two places i.e. at village

Sudamada where the appellant had called other accused persons

and thereby, they assembled near one Tyre puncture shop and

then, they proceeded towards village Samadhiyala, where all the

accused persons formed an unlawful assembly and attacked on the

complainant and witnesses by deadly weapons, in which, two

persons were killed and many witnesses got injured.

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7. Further, the witnesses have supported the case of the

prosecution and also stated that the accused persons also

committed an offence of robbery and thereby, the appellant

accused is also facing charge of Section 396 of Indian Penal Code,

1860. It is needles to say hat in a case of conspiracy, hardly direct

evidence would be available and it also may be inferred from the

materials collected during the investigation. The I.O has also

collected CDR, from which location of the appellant was found with

the accused persons at the scene of offence. Thereby, considering

the case of the prosecution and material placed on record, it is

crystal clear that the accused formed an unlawful assembly and

then reached to the spot and though they very well known that the

complainant and witnesses belong to Scheduled castes/Scheduled

tribes, first they made an assault and then sprinkled chilly powder in

the eyes of witness Nandiniben. Thereby, it prima facie reveals that

the appellant has played an active role.

8. Learned counsel for the appellant has argued that the

chargesheet is filed and appellant may be released on bail. In this

context, it needs to be mentioned that nonetheless, after filing of

the chargesheet, it strengthens the case of the prosecution.

Reference is made to the decision of the Apex Court in the case of

Virupakshappa Gouda & Anr. Vs. The State of Karnataka &

Anr. reported in 2017 (5) SCC 406 and Navin Singh Vs. State of

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U.P. reported in 2021 (2) SCC (Cri.) 809 as filing of chargesheet

does not any manner lesser the allegation, but filing of chargesheet

is only a cosmetic change. The appellant is facing serious charge of

murder. If in a case, there is a grave charge and looking to the

severity of punishment, the Court may not exercise its discretion in

favour of the accused.

9. So far as subsequent progress in the present case is

concerned, some of the material witnesses are yet to be examined

and also the case is based on circumstantial evidence. Learned

Presiding Judge has also noted demeanor of witness also. While

granting bail, one of the criteria is interest of the prosecution is to

tempering with evidence is an important aspect, which is required to

be considered.

10. In this regard, the Sessions Court has to take appropriate call

and endeavour to expedite the trial. Merely recording the deposition

of witnesses is not a ground to allow the appeal and at the time of

deciding bail application, the Court should not blindly rely upon the

precedent as held by the Apex Court as each case should be

decided on its own merits and the Court has to consider the facts of

each case and in the instant case, prima facie offence is proved

against the accused. Further, at the time of deciding bail

application, appreciation of the evidence is not permissible and it is

very premature stage to appreciate the evidence.

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11. Here in the instant case, the appellant is facing charge of

Sections 302, 307, 396 of IPC etc. of IPC of the Indian Penal Code as

well as the Atrocities Act. In view of the above, tempering the

evidence, there is no case of vicarious liability and the common

intention is there and at this stage, detailed examination of

evidence is not permissible.

12. The Hon'ble Supreme Court has observed in the case of Ram

Govind Upadhyay vs. Sudarshan reported in 2002 (3) SCC 598

held that, "the accused has right to make successive application for

grant of bail, but while entertaining a subsequent bail application, it

is the duty of Court to consider the reasons and grounds, which

persuade to take a view different from the one taken in the earlier

application".

From the record, it appears that the appellant has inflicted the

stick blows to the deceased and witnesses, as a result of which, the

deceased received serious injuries and died. Thus, the charge

levelled against the appellant is very serious in nature and offence

is punishable with life imprisonment or death and earlier

applications before chargesheet have been rejected.

13. In this background fact, this Court prima facie is of view that

the appellant along with other accused with an intent to commit

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murder of the deceased, formed an unlawful assembly and

assaulted with deadly weapons and thereby, caused serious injuries

and committed murder. Considering the same, it cannot be said that

the appellant herein has been falsely implicated in the alleged

offence.

14. For the foregoing reasons, this Court is of view that it is not a

fit case to exercise discretion under Section 14-A of the Atrocities

Act as well as under Section 439 of Cr.P.C. in favour of the

appellant. Learned Sessions Judge has not committed any error in

dismissing the bail application. In view of the above, no case is

made out for bail. Accordingly, present appeal does not deserve any

consideration and is hereby dismissed. However, the trial Court

concerned shall make an endevour in expeditious disposal of the

trial. It is made clear that this Court has not delve into the merits of

the matter and the views expressed in the order are prima facie

only.

(HASMUKH D. SUTHAR,J)

SUCHIT