Gujarat High Court
Imran @ Immu Abdul Gaffar Gudala vs State Of Gujarat on 23 May, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/12338/2021 ORDER DATED: 23/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12338 of 2021
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IMRAN @ IMMU ABDUL GAFFAR GUDALA
Versus
STATE OF GUJARAT
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Appearance:
MR I H SYED, SENIOR COUNSEL WITH MR DEEP D VYAS(3869) for the
Applicant(s) No. 1
MR MITESH AMIN, PP WITH MR MANAN MEHTA, APP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/05/2022
ORAL ORDER
1. This regular bail application is filed by the applicant under Section 439 of Cr.P.C, seeking his release on regular bail in connection with FIR being C.R. No.11821030200568 of 2020 registered with Jhalod Police Station, District: Dahod for the offences punishable under Sections 302, 303 read with Sections 120(b) and 201 of IPC.
2. The case of the prosecution is that, criminal conspiracy alleged to have been formed to commit the murder of Hiren Patel, resident of City: Jhalod, District: Dahod. Accused numbering 1 to 9, including the present applicant have hatched a criminal conspiracy to kill deceased and in furtherance of said conspiracy, the work was entrusted to accused no.3 Irfan Pada, through accused no.4 Ajay Kalal and accused no.7 Imran Gudala, by accused no.8 Amit Katara, who had a political animosity with the deceased.
3. The alleged incident took place in early morning of 27.09.2020 between 5:30 a.m. to 6:30 a.m. when deceased Hiren Patel was on his regular morning walk and when he was on Jhalod to Dahod Road, he was hit by speeding pick up loading vehicle from behind Page 1 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 and after that, the driver with the vehicle fled away. During the course of investigation and considering the statement of witnesses and after making analysis of call details, C.C.T.V footages, it was revealed that due to political differences, the criminal conspiracy as referred above in para-1 had been hatched to kill the deceased by using vehicle so that the whole incident seen as an accident.
4. The outcome of the investigation revealed that, deceased Hirenbhai was elected Councilor of Jhalod Municipality, whereas, wife of accused no.8 Amit Katara, namely Kinjalben was being a Councilor, elected as President of Municipality, for a period of two and half years. In August-2020, the election was due for President and Vice President of Municipality. Deceased was in opposition party, representing BJP. The municipality body was ruled by Congress party and both President and Vice President were elected from the party, on account of majority of ruling body. Next election of President and Vice President was scheduled to be held on 26.08.2020. The deceased being an active member of rival group, managed to win over the councilors of ruling body and before election could held, deceased along with ruling party councilors, went to different places on tour and on the day of election, i.e. on 26.08.2020, they came back at Jhalod. Despite the whip issued by the Congress party, the councilors from the ruling party made cross- voting, as a result of which, as per the understanding made amongst the members, the Vice President Sonalben, though represented to the Congress party, was elected as President of Municipality with the support of opposition councilors and one Nandaben Vaghela, elected as Vice President who had fought election as independent candidate.
5. It is further case of the prosecution that, due to unexpected result of election, the accused no.8 Amit Katara being an active politician, having political grudge, accused no.4 Ajay Kalal supporter Page 2 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 of ruling party, decided to eliminate the deceased as they do not like the domination on the deceased on the municipal body, they formed criminal conspiracy to kill deceased Hirenbhai. The accused no.4 Ajay Kalal was given green signal from Amit Katara to execute the object of criminal conspiracy. Accused Ajay Kalal in consultation with accused no.7 Imran Gudala, contacted accused no.3 Irfan Pada, resident of Godhra, who has been convicted in connection with Godhra carnage and is sentenced to undergo life imprisonment. At the time of meeting, the accused no.3 Irfan Pada after release from jail on parole leave, he did not reported to the Jail Authority and was absconding.
6. It is further case of the prosecution that, as a part of large conspiracy hatched by the accused no.8, 4 and 7, the accused no.3 Irfan Pada agreed to eliminate deceased Hirenbhai for a consideration of Rs.20 lakhs for which he received Rs. 2 lakhs in advance by accused no.4 Ajay Kalal.
7. It is further case of the prosecution that, accused no.3 Irfan Pada was given necessary inputs of daily routine of deceased Hirenbhai by accused no.4 and 7, as deceased used to go on morning walk between 5:30 a.m. to 6:30 a.m. on the road going from Jhalod to Dahod. Accused no.3, arranged the meeting with accused no.2, accused no.5 and accused no.6 at the Dhaba (Highway Eatery) and decided to eliminate the deceased by using pick up loading vehicle. The accused no.6, arranged for bolero car bearing registration No.MP-09-CK-4981. On 26.09.2020, the accused no.1, 2, 3 and Irfan Bhisti were proceeded from Mahidhpur, Madhya Pradesh at about 8:30 p.m. in two different vehicles i.e. Mahindra Bolero car and Ford Figo Car. The Ford Figo Car, was parked at Railway Station, Dahod by accused no.3 and thereafter, all the accused, proceeded towards the place of incident in a Bolero Car. It is further case of the prosecution that, they had cup of tea, at the Page 3 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 tea stall run by witness Chetan Machar near Muvada Crossroad, Jhalod a place proximate to the place of commission of offence. It is further case of the prosecution that, till end of incident, the accused were in contact with each other on their mobiles. It is further case of the prosecution that, before the incident took place, the accused no.3 and accused Imran Gudala, conducted reiki and thereafter, as per plan, when deceased was on his regular morning walk, was hit by speeding pick up loading vehicle, alleged to have been he was given a dash by pick up loading vehicle, alleged to have been arranged by the accused no.3. Thereafter, the incident, the driver fled away along with the vehicle. Deceased was brought dead to the hospital.
8. It is further case of the prosecution that, son of the deceased namely Panth disclosed before the police authority expressing his apprehension that due to political rivalry, someone caused fatal injuries to his father or he was intentionally hit by the vehicle. Initially, police has registered A.D. Case under Section 173 of Cr.P.C. During the course of investigation, statements of the son of deceased and his wife were recorded, wherein reference was made about election of President and Vice President of the Municipality. It was revealed during the investigation that the bolero car used by the accused and in furtherance of the conspiracy hatched by the accused, his father was killed by using vehicle for which contract killing was given to accused Irfan Pada. The Deputy Superintendent of Police, Dahod lodged an FIR on 13.10.2020 wherein name of the accused no.1 to 5 have been disclosed and there was also reference of the name of accused no.8 and driver of vehicle. The accused were arrested and they have been chargesheeted. Thereafter, name of Amit Katara - accused no.8 who is the main conspirator of the alleged incident emerged during the course of investigation and later on, he as well as his aid Imran Gudala - accused no.7 arrested on 31.12.2020 and also chargesheeted. Both the cases have been Page 4 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 committed to the Sessions Court, Dahod which came to be registered as Sessions Case No.10/2021 and 49/2021.
9. This Court has heard Mr. I.H. Syed, learned Senior Counsel assisted by Mr. Deep Vyas, learned counsel for the applicant and Mr.Mitesh Amin, learned Public Prosecutor assisted by Mr. Manan Maheta, learned APP for the respondent-State.
10. Mr. I.H. Syed, learned Senior Counsel for and on behalf of the applicant, raised following contentions:
(i) That the applicant herein has been falsely implicated in the alleged offence merely on the ground that he associated with accused Amit Katara and Ajay Kalal.
(ii) That the applicant has been arraigned as an accused on the basis of statement of co-accused. There is no any material against the applicant to show that by any way he has been benefited, nor, at his behest any recovery or discovery of the incriminating articles being made by the investigating agency. The swift car and bike seized are not belonging to the applicant herein and he is not the registered owner of the vehicles. Therefore, the FIR which is being filed after delay of 15 days, clearly established that with the political pressure, it has been filed and the applicant herein falsely arrested in the alleged offence.
(iii) That, statements of the witnesses namely Chetan Machhar, Sunil Rameshbhai and Babubhai Panglabhai have been recorded by the investigating agency to establish the presence of the principal accused at the place and factum of reiki of the deceased, alleged to have conducted by the applicant, to facilitate the accused Irfan Pada to execute the plot to kill the deceased. In this context, it was submitted that none of the witnesses have said that the applicant Page 5 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 herein was present at the time of incident, nor, the applicant was subjected to Test Identification Parade. Therefore, there is no evidence or sufficient material to show his involvement in the alleged offence. Even, the C.C.T.V. footages and report of Cyber and Digital Experts do not throw any light on the issue that the applicant with the co-accused present at the time of alleged incident.
Therefore, considering the entire chargesheet case papers, there is no evidence to establish the involvement of the applicant herein.
(iv) That, the prosecution case is based on circumstantial evidence. Placing reliance on the decision rendered in case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in 1984 4 SCC 116, to submit that in the case of circumstantial evidence, prosecution has to conclusively establish the guilt of the accused by proved circumstances leading to the guilt of the accused and the facts so established should be consistent only with the hypothesis of the guilt of the accused. In light of the settled principle, learned Senior Counsel submitted that in the present case motive is not established. There is contradiction with the injuries sustained by the deceased and opinion of the P.M. Doctor, as the vehicle is dashed from behind, there are all chances to sustain multiple fracture injuries and other bodily injuries as per medical jurisprudence. The confessional statement in the form of demonstration panchnama is inadmissible evidence as per Section 25 and 26 of Indian Evidence Act and therefore, the statement made by the co-accused pointing out the involvement of the present applicant cannot be relied as substantial evidence. The prosecution failed to establish meeting of mind with the co-accused to establish the basic elements of criminal conspiracy. In these circumstances, the instances of incriminating circumstances does not complete the chain of events pointing towards the involvement of the applicant herein. Thus, therefore, it was submitted that there is no prima-facie evidence against the applicant herein in the alleged offence.
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11. In view of aforesaid contentions, Mr. Syed, learned Senior Counsel urged that since 29.12.2020, the applicant herein is in jail. There is no any past criminal record against the applicant. The applicant is permanent resident of Jhalod. The chargesheet is already filed and therefore, question does not arise to temper with the evidence. Thus, the applicant may be released on bail imposing suitable conditions.
12. Mr. Mitesh Amin, learned Public Prosecutor vehemently opposed the application. He contended that the applicant herein was supporter of ruling political party and close aid of principal accused Amit Katara and Ajay Kalal. Reiterating the facts of the prosecution case, it was contended that deceased had managed councilors of the ruling party so that the opposition may appoint President and Vice President of the Municipality and he was succeeded in his mission, as a result of which, cross-voting was done by the councilors belongs to Congress party. The accused Amit Katara being an influential political person of Jhalod was aggrieved with the result of the President and Vice President of the Municipality. It was pointed out that principal accused Amit Katara and their supporters literally ruled the administration of the municipality, but, due to changes in the power, they apprehended that now it is difficult for them to get the work done from the municipality. The learned Public Prosecutor drew attention towards the letter submitted by deceased to D.S.P., Dahod expressing apprehension from the accused to his life. In this context, it was submitted that criminal conspiracy formed by the accused Amit Katara, Ajay Kalal and the present applicant with the object to eliminate the deceased Hiren Patel and brought back the councilors who had supported the opposition party, as a result of which, accused Amit Katara with the aid of present applicant met accused no.3 Irfan Pada, gave him contract killing of deceased and also Page 7 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 made payment of Rs.2 lakh in advance and thereafter, the applicant herein show the house of the deceased and his regular morning walk activities thereby conducted reki. Learned Public Prosecutor would further submitted that during the course of investigation, statements of witnesses have been recorded, C.D.R. has been obtained to establish the continuous conversation of the accused with each other and till last date, they were in contact.
13. In the aforesaid facts, learned Public Prosecutor submitted that prima-facie, the involvement of the accused herein is established. The accused has been charged with the criminal conspiracy and murder. It is settled law that the conspiracy is always hatched in dark and is difficult to prove it by leading direct evidence and therefore, the existence of conspiracy and its object must be inferred from the circumstances and conduct of the accused. In the present case, continuous association of the applicant herein with the principal accused and series of meeting being attended by him, as well as conducting the reki and till last date of the incident he had made conversation on mobile phone with accused Amit Katara and Ajay Kalal which conduct shows that he had actively participated in the alleged offence and therefore, at this juncture, it cannot be said that there is no material involving the applicant herein in the alleged offence.
14. In support of his submissions, reference was made by learned Public Prosecutor on the judgment of Supreme Court rendered in case of Harjit Singh V/s. Inderpreet Singh alias Inder and Another reported in 2021 SCC OnLine SC 633, contending that at this stage, it is not expected to have the entire evidence establishing guilt of the accused beyond reasonable doubt, but, a prima-facie satisfaction of the Court in support of the charge. Thus, therefore, there is a prima-facie ground to believe that the accused is involved in the alleged offence. Therefore, considering the nature Page 8 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 of accusations, severity of the punishment and the nature of evidence in support of the charge, no case is made out for exercising discretion by this Court for releasing the applicant on bail.
15. In case of State of U.P. v. Amarmani Tripathi reported in 2005 8 SCC 21, the Apex Court in para-18 held as under:
"It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tempered with; and (viii) danger, of course, of justice being thwarted by grant of bail"
16. In the case of Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas reported in (2002) 3 SCC 598, the Apex Court laid down the factors, for exercising the power to decide the bail application, observed that, it is not expected by the Court to have the entire evidence establishing the guilt of the accused beyond reasonable doubt, but there ought to be a prima-facie satisfaction of the Court in support of the charge. It is further observed by the Apex Court that, whether case is fit for grant of bail involves the balancing of numerous factors, amongst which nature of offence, severity of punishment and prima-facie view of the involvement of the accused are important. No straight jacket formula exists for Courts to assess an application for grant or rejection of bail as it all depends on the peculiar facts of the case.
17. In light of settled principles and parameters as referred above and considering the facts and circumstances of the present case, this Court is of considered view that, the contentions raised for and on behalf of the applicant herein, more particularly admissibility of Page 9 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022 R/CR.MA/12338/2021 ORDER DATED: 23/05/2022 the confessional statement made during demonstration panchnama and effect of evidence collected during the course of evidence and its merits, are all matters to be considered at the stage of trial, not at the stage of considering the application of bail. In the facts of the present case, the applicant herein from the inception of the formation of criminal conspiracy was closely associated with the principal accused as referred herein above and had conducted reiki to enable the accused no.3 to execute the object of the conspiracy. If we perused the call analysis detail report, it appears that, from 01.06.2020 to 05.10.2020, the applicant was in constant touch with the accused Amit Katara and Ajay Kalal. Therefore, at this stage, it cannot be said that the calls made by him were routine talks. Therefore, at this stage, it cannot be said that there is no prima- facie evidence against the applicant herein and he has been falsely implicated in the alleged offence.
18. For the foregoing reasons, without expressing anything on merits of the prosecution case, this Court is of prima-facie view that, the involvement of the applicant-accused is established and therefore, considering the nature and gravity of accusations, severity of punishment and interest of the society at large and having regard to the circumstances as discussed herein above, this Court is not inclined to admit the applicant on bail.
19. Accordingly, present application stands dismissed. Rule is discharged.
(ILESH J. VORA,J) TAUSIF SAIYED Page 10 of 10 Downloaded on : Sat Dec 24 17:24:45 IST 2022