Gujarat High Court
Rabari Rajubhai Rughnathbhai vs State Of Gujarat on 11 October, 2023
Bench: M. R. Mengdey
NEUTRAL CITATION
R/CR.MA/13724/2023 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 13724 of 2023
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RABARI RAJUBHAI RUGHNATHBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. BHARGAV BHATT, ADVOCATE for ANKIT M MODI(7418) for the
Applicant(s) No. 1
MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1
MR PRATIK B BAROT(3711) for the Respondent(s) No. 1
MR. L.B.DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 11/10/2023
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
registered with Kadi Police Station, Dist.Mehsana for
the offences punishable under Sections 302, 307, 325,
324, 323, 143, 147, 148 and 149 of the Indian Penal
Code and under Section 135 of the G.P.Act.
2. Heard learned advocate Mr.Bhargav Bhatt
appearing for the applicant. He submitted that the
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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
judicial custody. The investigation is over and charge-
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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. This application is opposed by learned Additional
Public Prosecutor Mr.L.B.Dabhi 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.
He, therefore, submitted to dismiss the present
application.
4.1 Learned advocate Mr.Pratik Barot appearing for
original complainant - first informant has also opposed
the present application. In his submissions, one of the
deceased had given dying declaration before Executive
Magistrate wherein the deceased has clearly named the
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present applicant for having actively participated in
commission of offence in question plus there are
several eye-witnesses who, in their statements before
the Investigating Officer, have clearly earmarked the
role played by the present applicant in commission of
offence in question. He, therefore, submitted to dismiss
the present application.
4.2 Learned advocate Mr.Barot for the first informant
has sought to rely upon following judgments in support
of his submissions.
(i) Ajwar vs. Niyaj Ahmad, 2022 (0) AIJEL SC 69942;
(ii) Brijmani Devi vs. Pappu Kumar, 2021 (0) AIJEL SC
68151
5. Heard learned advocates for the parties and
perused the record.
6.1 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
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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
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
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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
been done by the first informant.
6.2 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.
6.3 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
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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
remain silent till the time the FIR in question was
registered.
6.4 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
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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
doubt about the genuineness of the allegations levelled
against the applicant in the FIR.
6.5 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.
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6.6 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
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.
7. 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 FIR being I-
C.R.No.11206020220655 of 2022 registered with Kadi
Police Station, Dist.Mehsana on executing a personal
bond of Rs.10,000/- with one surety of the like amount
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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
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
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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
Court within a week. If the Applicants do not
possess passport, shall file an Affidavit to that
effect.
8. 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.
9. 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
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law. The Authorities will release the Applicants
forthwith only if the Applicants are not required in
connection with any other offence for the time being.
10. At the trial, the concerned trial Court shall not be
influenced by the prima facie observations made by
this Court in the present order.
11. Rule is made absolute. Direct service permitted.
(M. R. MENGDEY,J)
MISHRA AMIT V / Created By J.N.W.
