Dilipbhai Tersingbhai Katara vs State Of Gujarat
2023 Latest Caselaw 7077 Guj

                                                                                           NEUTRAL CITATION




     R/CR.MA/7638/2023                                      ORDER DATED: 26/09/2023

                                                                                            undefined




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR
     BAIL - AFTER CHARGESHEET) NO. 7638 of 2023

=====================================================
             DILIPBHAI TERSINGBHAI KATARA
                        Versus
                   STATE OF GUJARAT
=====================================================
Appearance:
MR NIRUPAM D NANAVATY SENIOR ADVOCATE with MR SUNIL S
JOSHI(2925) for the Applicant(s) No. 1
MR DARSHAN P DAVE(5928) for the Respondent(s) No. 1
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
=====================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 26/09/2023

                                 ORAL ORDER

1. Heard learned Senior advocate Mr. Nirupam D.

Nanavaty with learned advocate Mr. Sunil S. Joshi appearing for the applicant, learned Additional Public Prosecutor Ms. Maithili d. Mehta appearing for the respondent - State and learned advocate Mr. Zubin F. Bharda with learned advocate Mr. Darshan P. Dave appearing for the respondent No.1 - original complainant.

2. By way of this successive bail application filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking release on regular bail in connection with the FIR being C.R.No.11821020220525 of 2022 dated

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

11.11.2022 registered with Fatepura Police Station, District : Dahod for the offences punishable under Sections 302, 307, 326, 323, 337, 143, 147, 148, 149, 427, 504 and 120B of the Indian Penal Code and also under Section 135 of the Gujarat Police Act.

3. Learned senior advocate Mr. Nirupam D. Nanavaty with learned advocate Mr. Sunil Joshi appearing for the applicant made following submissions :-

(a) as per the case of prosecution, the present applicant along with other accused persons came in tavera car and started assaulting the deceased person with sticks. According to learned senior advocate Mr. Nanavaty in the statement of two independent witnesses viz. Rameshbhai, Bhuriben and Bharatbhai, initial statement of three witnesses recorded in the month of November-2022, there is no mention about tavera car. It is only in their further statement recorded on 12.1.2023, that there is a reference about tavera car and even in the second statement of each of the independent witnesses the applicant is not named and all that the witnesses have said is that they are in a position to identify the persons who assaulted the deceased person.

(b) Learned senior advocate Mr. Nirupam D.

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

Nanavati then pointed out from the T.I. Parade that even during T.I. Parade, the present applicant could not be identified by the independent witnesses viz. Rameshbhai, Bhuriben and Bharatbhai and the only interested witness/injured witness namely complainant Paiyesh @ Kalubhai Mukeshbhai Vadvai and one witness Virendra @ Bhalo could identify the present applicant, which shows contradictions not only in the statement of witnesses but even during identification Parade also as independent witnesses could not identify the present applicant.

(c) It was submitted by learned senior advocate Mr. Nanavaty that theory put forward by the complainant that the present applicant and other co-accused persons have come in a tavera car after the toofan car arrived at the scene of offence is not supported by CCTV footage, as there is a reference about CCTV footage in the charge-sheet papers and when the aforesaid CCTV footage were supplied to the present applicant as well as to the complainant through their advocates, in CCTV footage only toofan car is seen and tavera car is not seen.

(d) It was submitted by learned senior advocate Mr. Nanavaty that there is no recovery or discovery from the present applicant even after

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

the present applicant was subjected to remand after his arrest.

(e) Learned senior advocate Mr. Nanavaty submitted that the prosecution has collected mobile tower locations of the present applicant and even as per the mobile tower locations, the present applicant is found at a far away place and not at the scene of offence.

According to learned senior advocate Mr.Nanavaty right from the beginning it is alleged that the present applicant has played a direct role in the offence in question and during the course of argument, the theory of conspiracy under Section 120B of the Indian Penal Code was propagated by learned advocate Mr. Zubin Bharda for the complainant as well as learned Additional Public Prosecutor Ms. Maithili D. Mehta appearing for the respondent- State. According to learned senior advocate Mr.Nanavaty that when as per the charge-sheet the active role of present applicant could not be established and the same stands falsified by way of evidence on record. Prima-facie the theory of conspiracy was pressed into service by prosecution as well as complainant.

(f) By making the aforesaid submissions, learned senior advocate Mr. Nanavaty prayed for grant of

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

bail to the present applicant.

Learned senior advocate for the applicant submitted that, the applicant is not involved in commission of offence as alleged in the FIR and therefore, looking to the role of the applicant and nature of the allegations, the applicant is required to be enlarged on regular bail by imposing suitable terms and conditions.

4. Learned Additional Public Prosecutor Mr.Maithili Mehta appearing for the respondent - State while opposing the bail application made following submissions :-

(a) Though there are contradictions and inconsistency in the statements of independent witnesses as in two different statements they have not consistently stated the role of the present applicant. However, considering the fact that the injured witness and the complainant have consistently named the present applicant and has specifically stated the role of the present applicant, coupled with the fact that the present applicant was identified by the injured witness and complainant shows prima- facie involvement of the present applicant in a serious crime.

(b) It was submitted by learned APP Ms. Mehta

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

that the present applicant was constantly in touch with other co-accused persons as can be seen from his mobile tower locations and call details.

(c) Learned APP Ms. Mehta also submitted that the present applicant is named in the FIR and considering the nature of offence which is of a very serious nature as it resulted in loss of life of one of the person who was assaulted by the applicant and other accused persons, the present applicant may not be enlarged on bail.

(d) It was also pointed out by learned APP Ms.Mehta that there are three past antecedent reported against the present applicant as per the affidavit of I.O. however, at this juncture learned senior advocate Mr. Nanavaty upon instruction clarifies that out of three offences in one offence the present applicant is acquitted and in respect of one offence C- Summary has already been accepted by the concerned Magistrate Court.

(e) Learned APP Ms. Mehta relied upon a judgment of the Hon'ble Supreme Court in case of Mahipal Versus Rajesh Kumar @ Polia reported in 2020 (2) SCC 118 and by relying upon paragraph No.12 of the aforesaid judgment submitted that the determination of whether a case is fit for grant

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

of bail involves the balancing of numerous factors and though there is a no straitjacket formula for grant of bail exists considering the nature of evidence, the present applicant may not be enlarged on bail.

5. Learned advocate Mr. Zubin Bharda appearing for original complainant while vehemently opposing this application for bail made following submissions :-

(a) The present applicant is actively involved in the brutal murder of the deceased person and his presence at the scene of offence is supported by the statement of not just the complainant Paiyesh @ Kalubhai Mukeshbhai Vadvai but also by Virendra @ Bhalo Mukeshbhai Vadvai. Learned advocate Mr. Bharda states that Paiyesh is the injured witness and therefore, his statement would carry much more weight than the statement of other witnesses.

(b) Learned advocate Mr. Bharda further submitted that present applicant is identified by aforesaid injured witness complainant viz. Paiyesh @ Kalubhai Mukeshbhai Vadvai and Virendra @ Bhalo Mukeshbhai Vadvai that also would indicate that the present applicant was not just present at the seen of offence but he has actively participated in the offence in

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

question.

(c) Learned advocate Mr. Bharda further submitted that the evidence on record clearly indicates that this is a clear case of conspiracy as the present applicant was in constant touch with main accused Sukram and therefore, considering the past antecedent reported against the present applicant as well as overall evidence on record, the present applicant may not be enlarged on bail.

(d) Learned advocate Mr. Bharda adopted rest of the submissions made by learned APP Ms. Mehta and prayed for rejection of this application for bail.

On the other hand, learned APP Ms. Mehta and learned advocate Mr. Bharda with learned advocate Mr. Dave appearing for the respondents vehemently submits that, the offences, which have been charged, are serious in nature affecting the society at large and looking to the facts as well as the allegations made against the applicant, no discretion would be required to be exercised.

5. In the facts and circumstances of the case and considering the nature of allegations, this Court is of the opinion that, discretion is required to be exercised to enlarge the

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

applicant on regular bail. This Court has considered the following aspects while exercising discretion in favour of the applicant:-

(i) the applicant is in jail since 13.1.2023;

(ii) investigation is over and the charge-sheet is filed;

(iii)prima-facie, it seems that the statements of independent witnesses viz. Rameshbhai, Bhuriben and Bharatbhai are not consistent in the first statement of all these three independent witnesses record on 12.11.2022, they did not name the present applicant or there is no mention about presence of tavera car and all that was stated in the statement by the independent witnesses was that they can identify the persons who committed the assault. However, in subsequent statement dated 12.1.2023, independent witness viz. Bharatbhai referred to about tavera car whereas independent witness Rameshbhai and Bhuriben did not mention about tavera car even in the subsequent statement dated 12.1.2023.

(iv) During T.I. Parade those three independent witnesses could not identify the present applicant.

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

(v) There are contradictions as the independent witnesses did not name the present applicant nor could identify the present applicant whereas the complainant (injured witness) and witness Virednra, identified the present applicant and therefore, when some persons could identify and some could not prima-facie according to this Court, the benefit must go to the accused person as whether the present applicant was present at the scene of offence or not is a matter of evidence.

More particularly, keeping in mind the fact that it is a specific case of learned senior advocate Mr. Nanavaty that the injured witness/complaint Paiyesh @ Kalubhai Mukeshbhai Vadvai was knowing the present applicant and therefore, the present applicant was named in the FIR and hence identifying the present applicant in the T.I. Parade by the aforesaid Paiyesh @ Kalubhai Mukeshbhai Vadvai and Virendra, who happens to be a cousin brother of the Paiyesh @ Kalubhai Mukeshbhai Vadvai, is nothing but an empty formality, according to learned senior advocate Mr. Nanavaty. However, though aforesaid aspect has been considered, this Court is of the view that

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

at the stage of trial, the Trial Court may not be guided by this prima-facie observation and at the time of trial may consider the evidence on record.

(vi) As per the mobile tower locations, prima-

facie it seems that the present applicant's location was at the far away from the place of incident.

(vii) There is no recovery or discovery from the present applicant as per the charge-sheet papers.

(viii) As far as the theory of conspiracy is concerned the same is a subject matter of evidence.

(ix) Looking to the past antecedents reported against the present applicant, the same can be taken care of by imposing suitable conditions.

6. In view of the aforesaid facts, without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

C.R.No.11821020220525 of 2022 dated 11.11.2022 registered with Fatepura Police Station, District : Dahod on executing personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned 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 injuries 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 Sessions Judge concerned;

[e] furnish latest 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 trial Court; [f] mark his presence before the concerned police station in the first week of every month till the trial is over;

[g] Not enter into the territorial limits of Dahod District for a period of six months and Taluka Fatepura till the trial is over.

7. The Authorities will release the applicant only if the applicant is not required in connection

NEUTRAL CITATION

R/CR.MA/7638/2023 ORDER DATED: 26/09/2023

undefined

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 learned 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. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.

8. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(NIRZAR S. DESAI,J)

Pallavi