Gujarat High Court
Jaysukhbhai Devrajbhai Radadiya vs State Of Gujarat on 5 April, 2019
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.A/389/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 389 of 2019
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JAYSUKHBHAI DEVRAJBHAI RADADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR YOGESH LAKHANI SENIOR ADVOCATE MR ASHISH M DAGLI(2203)
for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MS.AKSHITABA SOLANKI(6782) for the Opponent(s)/Respondent(s) No. 2
MS MOXA THAKKER ADDL. PUBLIC PROSECUTOR(2) for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 05/04/2019
ORAL ORDER
1. This is an appeal filed under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act" for short) at the instance of the appellant - original accused for bail in connection with the FIR being I - C.R.No.38/2018 registered with Shapar Veraval Police Station, District: Rajkot Rural for the offences punishable under Sections 302, 342, 354, 323, 143, 147, 148, 149 of the Indian Penal Code, Section 135 of the Gujarat Police Act and Section 3(1)(r)(s), 3(2)(5) of the Atrocity Act.
2. It is the case of the prosecution that the complainant is doing labour work and she has having one daughter and son and residing with her husband namely Mukeshbhai and doing labour work. It is alleged that on 20.05.2018, the complainant with her husband and her aunt were collecting scrap, at that time, five persons came and without asking anything started beating and, thereafter, taken Page 1 of 7 R/CR.A/389/2019 ORDER towards the factory of one of the persons. It is submitted that the husband of the complainant was forcibly tied up and the complainant and her sisters were asked to leave and after that, the complainant was informed to one Ishwarbhai who resided nearby and also informed that her husband has been physically assaulted and he is made at the factory. It is submitted that all the relatives were called and one Sukhdevbhai, to whom, intimation was given on phone from the factory to the effect that the person to whom injuries were caused, where asked to pick up from the factory. It is further submitted that thereafter, the complainant along with other persons went to the factory and they found that her husband was lying on the floor and called 108 and the deceased was taken to the civil hospital, Rajkot where he was ultimately found dead, the FIR came to be lodged.
2.1 According to the appellant, pursuant to the FIR, he has been arrested. Therefore, the appellant had filed Criminal Misc. Application No.714 of 2018 for regular bail, which came to be rejected by the learned 5th Additional Sessions Judge, Gondal vide order dated 14.12.2018. According to him, he is innocent and he has been falsely implicated in the alleged offence and investigation is over and the charge-sheet is filed. It is further alleged that there is no evidence to connect the present appellant with the alleged commission of crime. It is submitted that considering overall facts and circumstances of the case, he may be released on bail in the interest of justice.
3. An affidavit-in-reply has been filed on behalf of respondent No.1 - State by S. S. Mehta, Deputy Superintendent of Police, S.C. / S.T. Cell, Rajkot Rural, Rajkot. It is stated in the affidavit-in-reply that there is a strong prima facie case against the accused and during the investigation, it was found that the appellant was involved in the offence, while taking active role in the commission of heinous offence. It is also stated that the deceased was mercilessly Page 2 of 7 R/CR.A/389/2019 ORDER beaten by the accused wherein he has been identified in the mobile recording and from scientific report of the FSL, it is found that the presence of the accused was there. It is also stated that during TI Parade, the complainant and her sister have identified this very accused and the statement of the complainant is supported by Savitaben, Ishwarbhai, Dhanjibhai, Dineshbhai and Sukhdevbhai. It is also stated that the present accused having taken active role in the alleged offence and he having found present at the time of scene of offence, his bail application may be rejected.
4. Heard Mr.Yogesh Lakhani, learned senior counsel for Mr.Ashish Dagli, learned advocate for the appellant, Ms.Moxa Thakker, learned Additional Public Prosecutor for respondent No.1 - State and Ms.Akshitaba Solanki, learned advocate for respondent No.2. Perused the papers made available in record and the papers annexed with the memo of appeal.
5. Mr.Yogesh Lakhani, learned senior counsel for Mr.Ashish Dagli, learned advocate for the appellant has submitted the same facts which are narrated in the appeal memo and invited the attention of this Court to the contents of the FIR, IT Parade, other discovery panchnama and statements of various eye witnesses and submitted that the charge-sheet has been filed. He has submitted that it appears from the TI Parade and panchnama that no active role can be attributed to the accused and the discovery panchanama was, at the instance of, one Chirag and as per FSL report, the accused was found wearing black and yellow strips T-shirt. While referring to the panchnama of production of the clothes, Mr.Lakhani, learned counsel has submitted that from that panchnama, it appears that two persons have produced T-shirt having black and yellow strip colour and, therefore, looking to the photographs, it cannot be said that the present accused has committed the said offence and has taken active part. It is submitted that even if it is believed that the present accused was present at the place of offence, then no active Page 3 of 7 R/CR.A/389/2019 ORDER role has been attributed to him and he is only seen as standing where other accused was beating the deceased. He has, urged to enlarge the appellant on bail on suitable terms and conditions.
5.1 Mr.Yogesh Lakhani, learned senior advocate has relied upon the order dated 04.02.2019 passed by the Coordinate Bench of this Court in Criminal Appeal No.1502 of 2018.
6. Per contra, Ms.Moxa Thakker, learned Additional Public Prosecutor for respondent No.1 - State has submitted that the same facts which are narrated in the affidavit-in-reply filed by the Deputy Superintendent of Police and stated that out of five accused one was juvenile and, therefore, he has been sent to the juvenile Court. She has submitted that the present appellant is owner of the factory wherein said incident has taken place. While referring to the panchnama at page no.83, she has submitted that the present accused has produced the clothes which were worn by the accused which clearly taken from on the photographs which shows that the present accused was present at the time of incident. She has contended that there is mobile image wherein he has found as standing at the place of occurrence where other accused were beating the deceased. While referring to the postmortem note, it is stated that there are 23 injuries on the body of the deceased and the name of other person i.e. Tejas has been shown at factory premises, has been enlarged on bail by the Coordinate Bench of this Court. According to her, the present accused was present at the place of incident and it has been supported by the statement of one Manoj. She has submitted that the complainant and her aunt have identified the accused in TI Parade and also discovered materials. She has, therefore, urged to dismiss the appeal.
7. Ms.Akshitaba Solanki, learned advocate for respondent No.2 has adopted the arguments advanced by learned Additional Public Page 4 of 7 R/CR.A/389/2019 ORDER Prosecutor and has submitted that there were 23 injuries on the body of the deceased and complainant has identified the present accused in the TI Parade and she has prayed to dismiss the appeal.
8. This Court has taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40.
9. Having heard learned advocates for the parties and having perused the papers with the charge-sheet, it appears that the deceased sustained multiple injuries as per the postmortem report. It also reveals from the papers that the prosecution has heavily relied on the mobile images and report of the FSL. Now, on perusal of the mobile images, it appears that one person is tied and another person is beating him and other person is standing nearby. According to the prosecution, the present accused is standing. Looking to the photographs and the mobile images, it appears that he was just standing there, he was not beating the deceased. It is also an admitted fact that one Tejash Kanubhai Zala has been released on bail by this Court wherein the similar allegations are made. It also appears from the record that the discovery muddamal has been recovered at the instance of the other accused Chirag. It also appears from the record that the statements of the complainant and one Savitaben reveal that they have not been seen the actual occurrence of the incident, which occurred inside the factory premises. In other words, except presence of the appellant, no other role is noticed from the statement of the prosecution witnesses and also from the CCTV footage and mobile phone. Therefore, considering the material placed on record, this Court is of the opinion that when there is no past antecedent against the appellant and there is no likely to temper or hamper with the evidence, if he is released on bail on certain conditions, no prejudice is likely to the caused to the prosecution.
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10. Hence, the present appeal is allowed. The impugned order dated 14.12.2018 passed by the learned 5th Additional Sessions Judge, Gondal in Criminal Misc. Application No.714 of 2018 is hereby quashed and set aside. The appellant is ordered to be released on regular bail in connection with I - C.R.No.38/2018 registered with Shapar Veraval Police Station, District: Rajkot Rural 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 Sessions Judge concerned;
(e) mark presence before the concerned Police Station on alternate Monday of every English calendar month between 11.00 a.m. and 2.00 p.m., for a period of six months or till the conclusion of the trial, whichever is earlier;
(f) furnish the present address of his 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 this Court;
11. The authorities will release the appellant 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.
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12. 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.
13. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the appellants on bail.
14. The appeal is allowed in the aforesaid terms. Direct Service is permitted.
(A. P. THAKER, J) V.R. PANCHAL Page 7 of 7