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CR.MA/2513/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2513 of 2011
=========================================================
DILIP
@ DILO VALKUBHAI SABAD@ DILIP VALKUBHAI SABAD KATHI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
M/S
THAKKAR ASSOC. for
Applicant(s) : 1,
MR AJ DESAI, ADDITIONAL PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 15/03/2011
ORAL
ORDER
This
application is filed under Section 439 of the Code of Criminal
Procedure in connection with First Information Report registered at
C.R. No.I-27 of 2010 with “A” Division Police Station,
Junagadh, for the offences punishable under Sections 143, 147, 148,
149, 302 and 120B of the Indian Penal Code and Section 25(1)(B-A),
27 and 29 of the Arms Act.
It
is the case of the prosecution that in presence of 12 persons
conspiracy was hatched to kill deceased – Karmanbhai Punjabhai
and accordingly on 01.02.2010 around 9 a.m. when deceased –
Karmanbhai Punjabhai was standing on the road, accused persons came
in black colour jeep from Girnar gate side and two persons, as named
in the FIR along with one unknown person, got down from the car and
involved the accused in talks. At the same time one Ashwin
Valkubhai Kathi from the rear of the vehicle fired shot from the
pistol and immediately the very person fired two rounds on the
deceased and escaped in a car and one unknown person who was sitting
in the car drove away the car towards Junagadh and Karmanbhai fell
down on the ground with blood stained clothes, who was taken to the
hospital where he was declared dead. Later on, the police drew
demonstration panchnama and in a further statements of complainant
recorded on 08.03.2010 and 25.03.2010 names of the applicants herein
were disclosed that the unknown persons were the applicants herein.
Besides statements of three witnesses recorded on 01.04.2010 exactly
after two months of the incident, according to prosecution, support
the theory of hatching conspiracy to kill Karmanbhai and in
furtherance of the conspiracy the alleged incident took place.
Learned
senior counsel appearing for the applicant submits that the
applicant is falsely implicated in the commission of crime and the
role of the applicant surfaces on the record in view of alleged
conspiracy hatched by about 12 persons in the construction of Diwan
Chowk, Junagadh. It is further submitted that the applicant was
found on a motorbike at the scene of offence. It is further
submitted that statement of one Hirabhi dated 1.4.2010 mentioned
about meeting with Bijalbhai, Rajabhai and Abhabhai on 30.3.2010 but
Bijalbhai in his representation to the DSP, Junagadh preferred on
1.4.2010 had not stated an iota of incident in question and any
implication of applicant is out of false rivalry and now charge
sheet is filed and co-accused are enlarged on bail, this application
for bail may kindly be considered.
Heard
learned APP for the respondent – State and Mr. Hriday Buch,
learned advocate for the complainant who opposed grant of bail
looking to the nature and gravity of offence. Learned advocate for
the complainant submits that so far as the order dated 13.8.2010
passed in Criminal Misc. Application No.7659 of 2010 by learned
Single Judge of this Court is concerned, the complainant has
preferred SLP in which notice is issued and is pending for further
hearing while against subsequent order passed in the co-accused
order, the matter is likely to be listed before the Apex Court. It
is further submitted that the applicant was shown in column II of
the charge sheet as absconder.
Considering
overall facts and circumstances of the case and theory of conspiracy
as narrated by the prosecution was examined in earlier case and
presence of the applicant was shown on motorbike and prima facie
implication of the applicant appears to have been made to see that
all the persons are kept behind bar and co-accused is already
enlarged on bail who has not played any active role and though they
are additional, they are named in the FIR but no covert act is
noticed, and hence, I am inclined to enlarge the applicant on bail.
Learned
counsel for the parties do not press for further reasoned order.
In
the facts and circumstances of the case, the application is allowed
and the applicant is ordered to be released on bail in connection
with first information report registered at C.R. No.I-27 of 2010
with “A” Division Police Station, Junagadh, on executing
a bond of Rs.5,000/- (Rupees Five 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 the State of Gujarat without prior permission of the Sessions
Judge concerned;
(e) mark
presence at the concerned police station on the first Sunday of every
month between 10.00 a.m. and 3.00 p.m. for three months only;
(f)
furnish the present address of his residence to the I.O. and also to
the Court at the time of execution of the bond and shall not change
the residence without prior permission of this Court;
g) not
enter within the City and District limits of Junagadh for three
months, except, for the purpose of attending the trial or marking
presence.
The
Authorities will release the applicant only if 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.
At
the trial, the 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.
Rule
is made absolute to the aforesaid extent. Direct Service is
permitted.
Sd/-
(Anant
S. Dave, J.)
Caroline
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