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CR.MA/1304220/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13042 of 2008
In
CRIMINAL
APPEAL No. 1391 of 2007
With
CRIMINAL
MISC.APPLICATION No. 13047 of 2008
In
CRIMINAL
APPEAL No. 1394 of 2007
==========================================
PATHUBHA
GOVINDJI RATHOD AND OTHERS
Versus
STATE
OF GUJARAT
==========================================Appearance
:
MR ND NANAVATI
& MR YS LAKHANI, SR. Advocates with ANSHIN H DESAI and
HRIDAY BUCH for
the Applicants
MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for the
Respondent
MR
PM THAKKAR, SR. Advocate for the original complainant
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 17/11/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
Both
these applications are decided by this common order.
Heard
the learned counsel for the parties.
Admittedly,
there were two cross cases. The complainant party has been convicted.
The Investigating Officer of the case, in his deposition, has stated
that he is not in a position to ascertain as to which party was
aggressor. In that view, it is very difficult at this stage to
ascertain as to which party was aggressor. The prosecution was
itself at a loss to judge that which party was aggressor.
With
regard to the bail application of Pathubha Govindji Rathod, applicant
No.1 in Criminal Misc. Application No.13042 of 2008, is concerned,
he was an accused , who was armed with lethal revolver and he fired
six shots. If this was a case in his defence, then it cannot
be said that he could fire six shots in right of private defence.
In that view of the matter, the bail application of this Pathubha
Govindji Rathod is rejected.
With
regard to bail application of Hemubha Govindji Rathod, applicant No.2
in Criminal Misc. Application No.13042 of 2008, is concerned, who is
said to be an assailant of Hamirbhai Nagabhai- another deceased
because Nathabhai Nagabhai has been killed by bullet injury. This
deceased, in his first version given to the doctor in the
hospital, stated that he has been assaulted by Punjajibhai and his
sons. If this deceased’s version is taken into consideration then
his assailants were Punjajibhai and his sons. Attribution to
Hemubha is that he caused injury by sword. Then the question
requires to be debated in light of the statements of other
witnesses.
Apart
from these two persons, the other persons cannot be attributed with
any injury to the deceased which were effective. The other persons
have been assigned minor injury here and there. Therefore, they are
also ordered to be released on bail along with those who were on
bail during trial.
Accordingly,
the bail application of Pethubha Govindji Rathod, applicant No.1 in
Criminal Misc. Application No.13042 of 2008, is rejected and the bail
application of the other co-accused persons, i.e applicant Nos. 2 to
7, and the bail application of the applicants, being Criminal Misc.
Application No.13047 of 2008, are allowed in the facts and
circumstances of the case and they are enlarged on bail on their
furnishing a solvent surety of Rs.5,000/- each and personal bond(s)
of the like amount on usual terms and on the following further
conditions:-
(1) The
applicants shall not leave the territory of State of Gujarat without
permission of this Court.
(2) The
applicants shall not involve themselves in such or similar offence
hereafter.
In
the meanwhile, the substantive sentence shall remain under
suspension. Bail bond before the Trial Court. Rule is made absolute
to the aforesaid extent.
Direct
service is permitted.
(BHAGWATI
PRASAD, J.)
(BANKIM
N. MEHTA, J.)
omkar
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