Siddhrajsinh Bhagubha Vaghela vs State Of Gujarat on 22 October, 2020

[Cites 17, Cited by 5]

Gujarat High Court

Siddhrajsinh Bhagubha Vaghela vs State Of Gujarat on 22 October, 2020

Bench: Bhargav D. Karia

       R/CR.MA/14704/2020                                          ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 14704 of 2020

================================================================
                  SIDDHRAJSINH BHAGUBHA VAGHELA
                               Versus
                         STATE OF GUJARAT
================================================================
Appearance:
DHRUV P THAKKAR(9261) for the Applicant No. 1
MR YOGESH LAKHANI, LD.SR.ADV ASSISTED BY MR. NEEL P
LAKHANI(10679) for the Applicant No. 1
MR KIRTIDEV R DAVE (3267) for the Respondent No. 1
MS C M SHAH, APP for the Respondent No. 1
MR K.R.DAVE, LD. ADV for Original Complainant
================================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 22/10/2020

                                  ORAL ORDER

1. Heard learned Senior Advocate Mr. Yogesh Lakhani assisted by learned advocates Mr. Neel P. Lakhani and Mr. Dhruv P. Thakkar for the applicant, learned Additional Public Prosecutor Ms. C.M. Shah for the respondent State and learned advocate Mr. K.R. Dave for the original complainant through video conference.

2. By this application under Section 439 of the Code of Criminal Procedure, 1973 the applicant has prayed for regular bail after filing of the charge sheet in connection with the offence punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Sections 25(1b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, with Page 1 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020 R/CR.MA/14704/2020 ORDER regard to the F.I.R. being IC.R. No.11993005200314 of 2020 dated 9th May 2020 registered with Adesar Police Station, Bhachau, District Kutch.

3. Learned Senior Advocate Mr. Yogesh Lakhani assisted by learned advocate Mr. Neel P. Lakhani submitted that on perusal of the complaint dated 9th May 2020 and the statement of the complainant on 3rd June 2020 annexed with the chargesheet papers. a total different story is emerging with regard to the incident which had taken place on 9th May 2020.

4. Learned senior advocate Mr.Lakhani invited attention of the Court that in the statement of 9th May 2020 of complainant Rameshbhai, the name of the applicant is appearing and he is shown present with the other accused persons and the applicant is alleged to have stick in his hand. Mr.Lakhani thereafter, referred to the statement of the complainant Rameshbhai dated 3rd June 2020, where the presence of the applicant was shown but the complainant has not stated any role of the applicant by overt tact causing any injury to any of the deceased persons. Mr. Lakhani also referred to the statement of another witness namely Mr. Devrajbhai, which is verbatim same and according to him as the complainant and the witness have changed the version of the facts narrated in the statement dated 9th May, 2020, subsequently in additional statement dated 03.06.2020, the petitioner, who is aged about 22 years should be enlarged on bail.

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R/CR.MA/14704/2020 ORDER

5. Mr. Lakhani thereafter referred to the charge sheet at page nos.30 and 33 of the application wherein it is stated that there is no blood mark was found on the clothes, as well as, stick, which was recovered from the applicant.

6. Mr. Lakhani also submitted that a representation was made on 13th May, 2020 before the police by the brother of the applicant that the applicant was not present at the scene of offence on 9th May, 2020 and he was at village Rapar along with the brother of the applicant. It was submitted that no further inquiry or investigation is made by the police with regard to the collection of C.C.T.V. footage or retrieving the call details of the applicant to findout his location on the date of incident.

7. Mr. Lakhani further referred to the statement dated 02.06.2020 of one Mr. Balbhadra Bhagwatsinh Zala, Unarmed Police Constable dated 2nd June 2020, wherein he has stated that there was a scuffle between both the two sides i.e. Koli and Rajput on 6th May 2020 i.e. three days before the alleged incident and it was therefore, pointedout that in view of such scuffle, the alleged incident had taken place and as there was a case registered against the applicant three years back, the name of the applicant is falsely involved for the alleged offences though he was not present at the place of incident.

8. Mr. Lakhani pointedout from the cross Page 3 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020 R/CR.MA/14704/2020 ORDER complaint filed on behalf of the accused persons to pointout that the story narrated in the cross complaint the name of the applicant is not mentioned showing his presence at the place of incident.

9. On the other hand, learned APP Ms. C.M. Shah submitted that it is a case of murder of five persons and provision of Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C. are alleged against the applicant and in addition to the offence punishable under Section 25(1b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, are also alleged against the applicant. It was therefore, pointedout that there was a conspiracy of the applicant with the other accused persons to cause injury to the complainant side for previous enemity where five persons lost their lives due to the injuries caused by accused persons including the applicant and therefore, the applicant should not be enlarged on bail as he was part of the conspiracy.

10. Learned APP submitted that the name of the applicant appears in the FIR, as well as, his role is also specified in the FIR.

11. Learned APP Mr. Shah further submitted that there are antecedents against the applicant as there are three more offences registered against him in the year 2017 and 2019.

12. Therefore, it was prayed that taking into Page 4 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020 R/CR.MA/14704/2020 ORDER consideration, overall facts and circumstances of the case, where five persons have lost their life, the applicant should not be enlarged on bail.

13. Learned advocate Mr. Kirtidev R. Dave, who was permitted to appear on behalf of the original complainant, adopted the arguments of learned APP and further submitted that the applicant is having antecedents and therefore, if he is enlarged on bail, there is a likelihood of breach of peace. He further submitted that there is an assertion by the complainant in the complaint dated 9th May 2020 that the applicant was present at the place of incident and further, the same was reiterated in the additional statement recorded under Section 161 of the Code on 3rd June 2020, where the presence of the applicant was very much referred by the complainant and therefore, there is no contradiction in both the statements and as the applicant was present at the scene of offence as stated in the statement of complainant, which is also corroborated by the further investigation made by the prosecution as stated in the chargesheet, at this stage, it cannot be said that the applicant was not present at the scene of offence and when there are allegations of conspiracy under Section 120B of the IPC, the applicant should not be enlarged on bail.

14. Having considered the rival submissions and having gone through the materials on record, it appears that though the name of the applicant is Page 5 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020 R/CR.MA/14704/2020 ORDER shown in the FIR for the alleged offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Section 25(1b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, for the incident which took place on 9th May 2020, on perusal of the chargesheet papers, it appears that the complainant in the subsequent statement dated 3rd June 2020, which has been recorded after 25 days from the date of incident, the overt tact which was attributed in the FIR, is missing. Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3rd June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details. At this juncture, this Court is not going into the details of the incident as it may affect the trial at the later point of time. Suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side.

15. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

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       R/CR.MA/14704/2020                                                ORDER



16. 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.

17. This Court has considered following aspects :

(a) The applicant is in jail since 9th May 2020.

(b) Investigation is over and chargesheet is filed.

(c) The trial is likely to take time as more than 110 witnesses are there to be examined.

Looking to the overall facts and circumstances of the present case, I am inclined to consider the case of the applicant.

18. 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.

19. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being IC.R. No.11993005200314 of 2020 dated 9th May 2020 registered with Adesar Police Station, Bhachau, Page 7 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020 R/CR.MA/14704/2020 ORDER District Kutch on executing a personal bond of Rs.10,000/ (Rupees 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 State of Gujarat without prior permission of the concerned trial court till the trial is over;

[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month till the trial is over;

[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 enter the revenue limits of District Kutch for the period of six months except marking his presence before the concerned police station and to attend the trial.

20. This order is passed considering the facts of Page 8 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020 R/CR.MA/14704/2020 ORDER the case of the applicant only and the same shall not be considered as precedent for any other person who is accused in the complaint on ground of parity.

21. The authorities will release the applicant only if he is not required in connection with any other offence 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.

22. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

23. Rule is made absolute to the aforesaid extent.

24. The Registry is directed to communicate this order to the concerned Court/authority by Fax or E mail. Direct service is permitted.

(BHARGAV D. KARIA, J.) RAGHUNATH R NAIR Page 9 of 9 Downloaded on : Sat Oct 24 02:25:41 IST 2020

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