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CR.MA/655/2011 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 655 of 2011
=========================================================
GORSINGBHAI
JETIABHAI MACHHAR & 4 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
MM TIRMIZI for
Applicant(s) : 1 - 5.
MS CM SHAH ASST. PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 28/02/2011
ORAL
ORDER
1. Heard
Mr. Tirmizi, learned advocate for the applicants and Ms. C.M.
Shah, learned APP for the State.
2.
Mr. Tirmizi, learned advocate for the applicants does not press the
application for applicant Nos. 1, 4 and 5.
3.
Hence, the application stands disposed of as not pressed and
withdrawn qua applicant Nos. 1, 4 and 5. Rule is discharged qua
applicant Nos. 1, 4 and 5.
4.
So far as the applicant Nos. 2 and 3 are concerned, learned Counsel
for the applicants has drawn attention of the Court to the
panchnama and submitted that according to the panchnama of the scene
of the offence, at 7.30 p.m. the offence could not have been visible
and the scene of the offence was 70 meters away from the
complainant’s house and there was corn plantation which was atleast 6
feet high. Further there is a walking road on which only one can
walk. Therefore, the accused have been wrongly arranged as an accused
in the present case. He, further submitted that investigation is over
and charge-sheet is submitted. Hence also, applicants be released on
bail.
5. Mr. Tirmizi, learned advocate for the applicants further submitted that looking to the nature of offence and the facts that investigation is over, charge-sheet is filed since long, the applicants are required to be released on bail. Mr. Tirmizi, learned advocate for the applicants contended that in response to the RTI application it was informed that the call for Ambulance (108) was given on the ground that the person had suffered electric shock. He also contended that the complainant could not have been the eye witness. It is also noticed from the material on record and submissions of the learned advocate for the applicants and the learned APP that as per the FIR and chargesheet respondent No.2 was armed with a stick and that their does not appear to be any injury by stick blow.
6. On the other hand Mrs. Shah, learned APP opposed the contention of the learned advocate for the applicants and submitted that the applicants may not be released on bail because they have been convicted in serious offence. She has also submitted that there was motive behind the action of the applicants inasmuch as the father stood as surety in one of the cases against the applicants.
7. It is also noticed from the submissions of the learned advocate for the applicants and leaned APP that in the FSL report it has been stated that “As per inquest panchnama the probable case of death is injuries by assault with multiple blunt forces by assailants. As per postmortem report, external injuries on page No.4 Col.17, were total 4 (four) in number categorized as abrasions and out of which three of them were present on left side of the chest on anterior aspect in the upper part having size of 0.5 x 0.5 cms. each. Another injury was present on anterior aspect of left arms in upper part having size of 1 x 1 cms. After considering all above facts and findings in postmortem report and all other available informations, the most probable opinion regarding cause of death is as below:
“The possibility of death due to sudden cardiorepiratory arrest following blunt force injuries over chest and abdominal regions connnto be ruled out”
8. Upon consideration of the submissions and the record it prima facie emerges that the injury mentioned in the report are on account of fist and kick blows which the deceased received. Having regard to the aforesaid aspects and the fact that the investigation is over and the chargesheet is filed and the said applicant Nos. 2 and3 have been arrested on 31.5.2010 and 8.6.2010 respectively i.e. almost 8 months after the FIR, it appears appropriate to release the applicant Nos. 2 and 3 on bail.
9. Considering the submissions made on behalf of the parties, and having regard to the circumstances and facts of the case, the application is allowed qua the applicant Nos. 2 and 3 and they are ordered to be released on regular bail in connection with Crime Register No.I-125 of 2009 registered at Limbdi Police Station, Dahod for the offence punishable under Sections 147, 148, 149, 302 and 504 of the Indian Penal Code on executing bond of Rs.5,000/- each (Rupees Five Thousand only) with one surety of the like amount to the satisfaction of the lower Court and subject to the conditions that they shall,
a) not take undue advantage of liberty or abuse liberty;
b) not act in a manner injurious to the interest of the prosecution;
c) maintain law and order and should co-operate the investigating officers;
d) not to enter into the revenue limits of District Dahod till the trial is over but for attending the court in connection with this case, they will be free to enter the limits for a period to the extent necessary and will leave the limits immediately after the case is adjourned; and
e) mark their presence before the Dahod Police Station on every second and fourth Monday of every month at any time between 10.00 a.m. and 2.00 p.m. for six months and thereafter before the concerned Police Station;
f) furnish the present and permanent address of their 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;
also furnish the address where the applicants would stay (in view of the condition to remain outside the limits of District Dahod) while the trial and conditions prescribed by present order enure.
g) not leave the limit of State of Gujarat without prior permission of the Court; and
h) surrender their passport, if any, within a week to the lower Court.
10. The authorities will release the said applicant Nos. 2 and 3 only if they are not required in any other offence.
11. 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.
12. At the trial, the trial Court shall not be influenced by the observations, which are purely prima facie, tentative and preliminary nature and have been made only for the purpose of examining prayer for bail pending the trial. The Court shall arrive at its own conclusion independently on the basis of the evidence and other aspects of the case.
13. Bail before the lower Court having jurisdiction to try the case.
14. Rule is made absolute qua applicant Nos. 2 and 3. Direct service is permitted.
(K.M.THAKER,J.)
Suresh*
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