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CR.MA/10439/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10439 of 2011
=========================================
RAMESHBHAI
GOVABHAI DESAI & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR YS LAKHANI SR. ADV. with MR PS GONDALIYA for M/S
S G ASSOCIATES for Applicant(s) : 1 - 3.
MS MANISHA L SHAH ADDL.
PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/08/2011
ORAL
ORDER
Learned
advocate for the applicants does not press this application qua
applicant Nos. 1 and 2. Rule discharged qua applicants Nos. 1 and 2.
Learned
advocate for the applicant submits that the
investigation is over and charge sheet is filed and looking to the
papers of charge sheet the story of having seen the incident by one
witness namely Sundabhai is absolutely unbelievable and this witness
is got up one as an eye witness to the incident after wards. It is
submitted that the complainant is not an eye witness. It is
submitted that the
entire case of the prosecution revolves round the statements of two
witnesses viz. Sundabhai and Sadabhai Thakore, who have changed their
version about number of persons assaulted the deceased and the
weapons used by them. The statement of Sundhabhai is recorded after
20 days and the complainant is
not an eye witness. So far as Sadabhai is concerned, the statements
recorded on 09.01.2011 and 13.01.2011 and affidavit filed in the
office of the lawyer on 24.01.2011 have different versions. So is
the case with Sundabhai, who claims to be an eye witness of the
incident, who has also sworn the affidavit in the office of an
advocate and again changed his version about number of persons
present at the scene of offence and played overt act. In view of the
above, it is submitted that the version of the above eye witnesses is
not trust worthy and when trial is likely to prolong, keeping the
applicant behind the bars is not advisable. In addition to the
above, it is submitted that the report of the FSL is sent in the
context of section 27 discovery panchnama in the context of seizure
of recovery of the weapons though it may be subject to the evidence
before the trial court, but at this stage, the benefit be given to
the applicant, who is at the most attributed with usage of hockey
stick.
Per
contra, learned APP as well as learned Senior Advocate for the
complainant have vehemently opposed the grant of bail on the ground
that veracity or the trustworthy of the witnesses cannot be gone into
and same would be subject matter of trial and no benefit of doubt be
given to the applicant in exercise of powers under section 439 of the
Code. It is further submitted that if the postmortem report is
perused injuries would reveal that CLW and a thick swollen reddish
wound on the parietal region coupled with the cause of death is due
to injuries on the vital part of the body in a heinous crime
punishable under section 302 of the IPC, the accused is not entitled
for bail.
Having
heard learned counsel for the parties and perusing the record of the
case, including statements, prima facie it appears different versions
about number of persons assaulted and the weapons used, besides
nature of injuries, recovery panchnama and FSL report, I am of the
opinion that involvement of the applicant at this stage, in
commission of the crime is based on version of the witnesses whose
statements have been recorded from time to time which appeared to be
full of contradictions and, therefore, at this stage, I am inclined
to enlarge applicant No.3 on bail in connection with C.R.No.I-4/2011
of Bhabhar Police Station for the offences punishable under sections
302, 323, 201 & 34 of the Indian Penal Code, on furnishing bond
of Rs.10,000/- (Rupees ten thousand only) with one surety of the like
amount to the satisfaction of the lower Court and on conditions that
the applicant No. 3 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;
[d] mark
presence before the concerned Police Station on every 1st
and 15th day of English Calender month between 11.00 a.m.
and 2 p.m for three months;
[e] not
leave the State of Gujarat without prior permission of the Sessions
Judge concerned;
[f] furnish
the address of residence at the time of execution of the bond and
shall not change the residence without prior permission of this
Court;
[g] surrender
passport, if any, to the Lower Court immediately;
[h] shall
not enter into the district and city limits of Banaskantha district
for a period of 3 months except for marking presence and attending
trial.
If
breach of any of the above conditions is committed, the Sessions
Judge concerned will be free to take appropriate action in the
matter.
At
the trial, the trial court shall not be influenced by the prima facie
observations made by this Court while enlarging the applicant on
bail.
Bail
before the Lower Court having jurisdiction to try the case.
Rule
is made absolute. Direct service is permitted.
[Anant
S. Dave, J.]
//smita//
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