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CR.MA/10941/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10941 of 2010
=======================================================
LALJIBHAI
BHAIJIBHAI RATHOD & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=======================================================
Appearance :
MR
HARESH N JOSHI for Applicant(s) : 1 - 2.
MS ML SHAH APP for
Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 20/09/2010
ORAL
ORDER
Rule.
Ms.M.L. Shah, learned Additional Public Prosecutor waives service of
notice of Rule on behalf of the Respondent-State of Gujarat.
The
present application has been filed by the applicants-accused under
Section 439 of Criminal Procedure Code for regular bail after filing
of the chargesheet.
The
applicants-accused are charged with having committed offences
under Sections 306, 498(A) and 114 of the Indian Penal Code, for
which, FIR being I-C.R.No.55/2010 has been lodged at Vanthali Police
Station.
Learned
counsel, Mr.Joshi for the applicants referred to the FIR as well as
the impugned order and the papers including the dying declaration
produced at Annexure-D and submitted that as stated in the dying
declaration recorded, it was an accidental case, however, it has not
been appreciated and considered. He, therefore, submitted that the
present application may be allowed as the investigation is over and
chargesheet has been filed.
Learned
A.P.P., Ms.Shah resisted the present application and submitted that
as stated in the FIR, the victim has stated in her dying declaration
before the brother as to what has transpired and the role attributed
to the applicant. She referred to the impugned order and submitted
that FSL Report also suggests that it could not have been filled in
when the stove was on. Therefore, considering the nature of offence,
the present application may not be allowed.
In
view of the rival submission, it is required to be considered
whether the present application can be entertained or not.
It
is well accepted that this Court is not required to appreciate and
scrutinize the evidence in detail at this stage. However, for
considering the prima-facie case, relevant submission referring to
whether it was an accidental death or suicide can be considered on
the basis of the evidence at the trial. Therefore, without further
elaboration, considering the dying declaration and also considering
the submissions made by the learned counsel with regard to oral
dying declaration, the Court is of the opinion that the present
application deserves to be allowed.
Accordingly,
present application stands allowed. The applicants are ordered to be
released on regular bail in connection with I-C.R.No.55/2010
registered with Vanthali Police Station on their executing a bond of
Rs.5,000/- (Rupees Five Thousand Only) each with one solvent 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 their liberty or abuse their liberty.
(b) not
to try to tamper or pressurize the prosecution witnesses or
complainant in any manner.
(c) not
act in any manner injurious to the interest of the prosecution.
(d) maintain
law and order and should cooperate the investigating officers.
(e) furnish
the address of their residence to the Investigating Officer and also
to the Court at the time of execution of the bond and shall not
change their residence without prior permission of the Court.
(f) surrender
their passport, if any, to the lower Court, within a week.
(g) mark
their presence before concerned Police Station 1st day of
every calender month between 11:00 AM and 2:00 PM till the trial
commences.
If
breach of any of the above conditions is committed, the concerned
Sessions Judge will be free to issue warrant or take appropriate
action in the matter.
Bail
before the lower Court having jurisdiction to try the case. It would
be open to the trial Court concerned to give time to furnish the
solvency certificate if prayed for.
Rule
is made absolute to the aforesaid extent. Direct service permitted.
(RAJESH
H.SHUKLA, J.)
/patil
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