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CR.MA/3745/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3745 of 2010
=====================================================
ARVINDBHAI
BUDHALAL VALAND & 3 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=====================================================
Appearance
:
MR
PRATIK B BAROT for Applicant(s) : 1 - 4.
MR DEVANG VYAS ADDITIONAL
PUBLIC PROSECUTOR for Respondent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 13/05/2010
ORAL
ORDER
1. This
application is preferred under Section 439 of the Code of Criminal
Procedure by the applicants, who came to be arrested in connection
with CR No.II 286 of 2009 registered with Kadi Police Station, for
the offences punishable under Sections 302, 304B, 498(A), 323, 504
and 114 of the Indian Penal Code as well as Sections 3 and 4 of the
Prohibition of the Dowry Act.
2. Learned
advocate appearing on behalf of the applicants submitted that the
applicants are innocent persons and have not committed any offence as
alleged in the FIR. It is submitted that the offences punishable
under Sections 302 and 304B were added after the release of the
applicants on bail. For the offences punishable under Sections 498-A,
323, 504, and 114 of the Indian Penal Code, the applicants preferred
regular bail application, which was granted by the learned Judicial
Magistrate First Class, Kadi. The applicants thereafter, preferred an
application before the learned Sessions Judge, Mehsana and learned
Sessions Judge after considering the role of the applicants,
dismissed the application preferred by the applicants. Learned
advocate by placing reliance on the FIR, submitted that the
applicants have not played any overt act in the commission of the
offences punishable under Sections 302 and 304B of the Indian Penal
Code. The complaint was given on 17.9.2009 and the deceased expired
on 15.10.2009, thereafter, Sections 302 and 304B were added.
Considering the role attributed to the applicants as reflected in the
FIR and further considering the report of the Sonography Clinic,
Bhagyodaya General Hospital, it becomes clear that the person, who
has been given kick and fist blows would never succumbed to the
injuries, after a period of about 1 and half months. The alleged
incident occurred on 28.8.2009 while complaint came to be lodged
after delay of about 20 days on 17.9.2009 and the prosecution has not
explained inordinate delay in lodging the complaint. It is also
submitted by the learned advocate that on perusal of the medical
papers as well as diagnosis, it clearly suggests that the deceased
was operated for fecal fistula, which she has developed long back and
considering the P.M. report and looking to the cause of death, the
deceased having developed cyst in ovary as reflected in the medical
papers, it is clear that cause of actual death is not homicidal
death. Thus considering aforesaid aspect, the applicants deserve to
be enlarged on bail.
3. Learned
APP Mr. Vyas while opposing the bail application submitted that the
applicants are involved in the serious offence punishable under
Sections 302, 304B, 498(A), 323, 504 and 114 of the Indian Penal Code
as well as Sections 3 and 4 of the Prohibition of the Dowry Act.
Considering the role attributed to the applicants and in the manner
in which the offence is committed by the applicants, no discretionary
relief be granted to the applicants and application deserves to be
rejected.
4. I
have heard the learned advocate for the applicants and learned APP
for the respondent State at length and in great detail. I have
considered the role attributed to the applicants as reflected in the
FIR and police papers, medical papers, which are produced by the
learned advocate as well as learned APP, are taken into consideration
by me. As per the FIR, the deceased was given kick and fist blows by
the applicants, as a result of which, she sustained injuries. She was
initially admitted in Bhagyodaya General Hospital, Kadi for treatment
and subsequently, shifted to the Civil Hospital at Ahmedabad.
Considering the medical papers and statements of the witnesses etc.
and the role attributed to the applicants and the manner in which the
offence is committed by the applicants as well as gravity of the
offence in which they are involved, I am of the view that they are
not entitled to claim discretionary relief as prayed for in the
application.
5. For
the foregoing reasons, there is no merit in the application and it is
hereby rejected. Rule is discharged.
(H.B.ANTANI,
J.)
ynvyas
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