Gujarat High Court
Kishanbhai Babubhai Chudasama vs State Of Gujarat on 18 February, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/317/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 317 of 2021
=====================================================
KISHANBHAI BABUBHAI CHUDASAMA
Versus
STATE OF GUJARAT
=====================================================
Appearance:
MR BRIJESH A KHANDHAR(9234) for the Applicant(s) No.
1
MR. SUHAIL Z SAIYED(6690) for the Applicant(s) No. 1
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
=====================================================
CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 18/02/2021
ORAL ORDER
1. Heard learned Advocate Mr. Suhail Z. Saiyed on behalf of the applicant and learned APP Ms. Moxa Thakkar on behalf of the respondentState.
2. By way of this application the applicant prays for being enlarged on regular bail under Section 439 of Criminal Procedure Code on account of his arrest in connection with the FIR being C.R.No. 11198042200600 of 2020 registered with Palitana Town Police Station, District Bhavnagar on 17.06.2020 for the offence punishable under Sections 302, 392, 201 and 34 of India Penal Page 1 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022 R/CR.MA/317/2021 ORDER Code and under Section 135 of the Gujarat Police Act.
3. It is stated by learned advocate Mr. Saiyed on behalf of the applicant that while the applicant had been named by the wife of the deceased as having gone alongwith the deceased alongwith the one other person Vipulbhai who happens to be brother of the present applicant but after investigation, statements of other witnesses would show that ultimately the deceased had left with Vipulbhai Koli and whereas the presence of the applicant as far as the last seen theory could not be established. He further takes this Court to statement of one Pradipbhai @ Padu Mavjibhai Koli, who states that on the said day, the deceased alongwith Vipulbhai had come to his house in the afternoon and he a1ongwith his brother had played some game of gambling with the said Vipulbhai and his brother and thereafter Vipulbhai and deceased had left his house at around 01:00 p.m.. Learned Advocate also takes this Court to the statement of one Jayaben wife of Kalubhai Zeenabhai Baraiya who Page 2 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022 R/CR.MA/317/2021 ORDER states that the deceased and accused Vipulbhai had come to her house to purchase country made liquor and thereafter both of them had left together. Relying upon this statements, learned Advocate submits that primafacie the last seen together theory would not been holding good against the present applicant therefore he submits that this Court may show indulgence to release the present applicant on regular bail.
4. This application is strongly opposed by learned APP Ms. Moxa Thakkar, who draws the attention of this court to reconstruction panchnama whereby the applicant herein had taken the panchas alongwith the investigating officer to the place where the alleged crime had taken place and had shown as to how the crime had been allegedly committed and his role in the alleged crime concerned. Relying upon the said statement learned APP submits that since the role of the present applicant is coming out clearly in the said panchnama and therefore this Court may not show any indulgence.
Page 3 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022
R/CR.MA/317/2021 ORDER 5. Learned APP Ms. Moxa Thakkar further submits that since the last seen together theory is
coming out very clearly in the complaint in as much as the present applicant and his own brother Vipulbhai were the last persons seen together with the deceased therefore, prima facie case was made out against the present applicant and therefore, also no indulgence deserved to be shown to the present applicant.
6. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.
7. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
8. This Court has considered following aspects, Page 4 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022 R/CR.MA/317/2021 ORDER
i) That there are statement of witnesses as referred to herein above which would show that it was not the applicant but Vipulbhai who was lastly seen with that deceased;
ii) That reconstruction panchnama relied upon by the learned APP is in the form of a selfincriminating confession therefore primafacie at this stage no cognizance can be taken thereof;
iii) The investigation is completed and the applicant is in custody since 19.06.2020. In the facts and circumstances of the present case, I am inclined to consider the case of the applicant.
9. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.
10. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.No. 11198042200600 of 2020 registered with Palitana Town Police Station, District Bhavnagar on executing a personal bond of Rs.10,000/ (Rupees Page 5 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022 R/CR.MA/317/2021 ORDER Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the India without prior permission of the concerned trial court; [e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;
[g] Not to enter into limits of Palitana Town for six months
11. The authorities shall adhere to its own Circular relating to COVID19 and, thereafter, will release the applicant only if he is not required in connection with any other offence Page 6 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022 R/CR.MA/317/2021 ORDER for the time being. 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. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
12. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.
(NIKHIL S. KARIEL,J) Pallavi Page 7 of 7 Downloaded on : Thu Jan 13 00:32:08 IST 2022