Gujarat High Court
Ajaybhai Amrutbhai Desai vs State Of Gujarat on 2 November, 2023
NEUTRAL CITATION
R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14068 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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AJAYBHAI AMRUTBHAI DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
MS MAITHALI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 02/11/2023
CAV JUDGMENT
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11197025211283/2021 registered with the Karjan Police Station, Vadodara Rural for the offence Page 1 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined punishable under Sections 302, 201, 120(B) and 114 of the Indian Penal Code.
2. Heard learned advocate, Mr. Himanshu Desai for the applicant and learned APP Ms. Maithali Mehta for the respondent - State of Gujarat.
3. Learned advocate, Mr. Desai submitted that the present application is preferred for the first time after submission of the chargesheet and the investigation is completed. It is submitted that the present applicant is arrested on 25.07.2021 and since then, he is in judicial custody. Learned advocate submitted that entire case of the prosecution is based upon circumstantial evidence and nobody has witnessed the incident. He further submitted that during the course of investigation, the concerned Investigating Officer has recovered certain articles through recovery/ discovery panchnama, except that, there is no material against the applicant connecting him with the commission of crime. Learned advocate submitted that there are more than 200 witnesses in the compilation of the chargesheet and out of those, only 42 witnesses have been examined and trial will take considerable time to conclude. It is submitted that during the course of investigation, polygraph test as well as Self-Directed Search (SDS) test were carried out by the Investigating Officer but concrete material could not have been elicited against the present applicant. Learned advocate submitted that during the investigation, Page 2 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined certain scientific tests have been carried out by the IO but the technology of those scientific tests has not reached upto that stage that solely by putting reliance upon the said test, the applicant can be connected with the commission of crime. Learned advocate has further submitted that the said science is at advance stage and result of the said test cannot be said to be a sole criteria to involve the present applicant - accused.
4. Learned advocate submitted that the case of the prosecution is based upon recovery of certain articles from the place of occurrence at the time of drawing recovery panchnama in the presence of panch witnesses, who have been examined, however except those panch witnesses, rest of the witnesses are the persons, who have not directly or indirectly connected with the offence and simply for the purpose of fulfillment of certain actions on their part, their statements have been recorded and they have been cited as witnesses. It is submitted that if the statements of those witnesses are to be read as it is, even though, nothing incriminating against the present applicant can be found out. Learned advocate submitted that during the course of recovery, one golden ring and certain pieces of mangalsutra were found from the place of offence after the lapse of 13 days from the date of incident and there are all possible chances that identical in nature of ring as well as mangalsutra can be found out from Page 3 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined anywhere and simply on the basis of recovery of those articles, the applicant cannot be connected with the incident of commission of crime. It is further submitted that from the place of occurrence, concerned IO has also received certain bones, which were sent to FSL for the purpose of carrying out DNA test and those bones were totally disfigured and burnt, therefore, the Scientifical Agency could not be able to carry out DNA test of those articles and in absence of material of DNA of the deceased, it can safely be said that the prosecution has miserably failed to even establish the dead body of the deceased, Sweetyben. Learned advocate submitted that considering the factual aspect, the applicant may be enlarged on bail.
5. Learned advocate further submitted that since last more than 27 months, the applicant is in judicial custody and during interregnum period, he was released on temporary bail on two or three occasions by the concerned Court and he has surrendered in time and, hence considering his conduct, act and behavior, the present application may be considered for the grant of bail.
6. Learned advocate has put reliance upon following decisions,
1. judgment in case of State of Rajasthan, Jaipur Vs. Balchand @ Baliay, reported in AIR 1977 SC 2447;
2. judgment delivered by Jummu & Kashmur High Court in case of Vipin Pandita Vs. Union Page 4 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined Territory of Jammu and Kashmir delivered in Criminal Misc. Application No.1998 & 1348 of 2021;
3. the judgment of the Hon'ble Supreme Court in case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40;
4. judgment of the Hon'ble Supreme Court in case of Boby Vs. State of Kerala delivered in Criminal Appeal No.1439/2009;
5. judgment of the Hon'ble Supreme Court in case of Vernon Vs. State of Maharashtra & Anr., delivered in Criminal Appeal No.639/2023;
6. judgment of the Hon'ble Supreme Court in case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) delivered in Criminal Appeal No.915/2023;
7. judgment of this Hon'ble court in case of Pratapbhai Maganbhai Shikari Vs. State of Gujarat delivered in Criminal Appeal No.829/2012;
8. judgment of this Hon'ble court in case of Ashokbhai Virsangbhai Damor Vs. State of Gujarat & Anr. delivered in Criminal Appeal No.893/2004;
7. Referring to the aforesaid decisions, learned advocate submitted that the principles enunciated by the Hon'ble Court in the aforesaid cases are squarely applicable to the case of the applicant Page 5 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined and hence, the case of the applicant may be considered for the grant of bail.
8. On the other hand, learned APP for the respondent-
State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spelt-out from the compilation of the chargesheet. It is submitted that the present applicant is Police Inspector and has possessed expertise skill to carry out investigation in a particular direction on the basis of certain incriminating material as well as action on the part of accused and in the present case, the applicant - accused has used his skillful art to destroy the evidence against him. It is the specific case of the prosecution that from the very beginning the applicant has tried to mislead the Investigating Officer by giving false and evasive answers and not only that, he has tried his level best to destroy the evidence by exercising his knowledge as IO. Learned APP has further submitted that the applicant has killed his wife and then after, taken the dead body to a particular place, wherein it was disposed of by burring it. It is submitted that the mobile tower and the location of the present applicant is clearly found out from Village : Atali, where the dead body of the deceased was disposed of. It is submitted that the dead body of the deceased was buried at a particular place and the said place Page 6 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined and/or property was in the name of the co-accused i.e. the friend of the present applicant and during the course of investigation, the pieces of teeth and bone have been recovered from the said place and those articles were sent to FSL for analysis but officials of the FSL could not be able to conduct the test upon the said muddamal articles because those articles were not found in good conditions and during the discovery along with golden ring, bracelet and pieces of mangalsutra were also seized, which were identified by the close relatives of the deceased. Not only that, on that particular date, when the present applicant - accused had carried the dead body of the deceased for destroying it, some unusual behavior of the present applicant has been recorded in the CCTV footage of the society and the present applicant has taken his car in reverse mode to his house and, thereafter, shifted the dead body in his car and disposed of it at particular place. It is submitted that the present applicant was Police Inspector and is very highly influential person and there are all chances that if he will be released on bail, in that event, he influence the witnesses, which ultimately would cause damage to the case of the prosecution. It is further submitted that the trial has already commenced and number of witnesses have been examined and, hence, the present application may not be considered. At this stage, learned APP Page 7 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined submitted that at the most, direction can be issued upon the concerned court for expeditious conclusion of the trial.
9. Learned APP also submitted that during the course of investigation, an attempt was made by the prosecution to carry out NARCO test upon the applicant - accused but the present applicant - accused has not given his consent to undergo such test and, hence, the act, action and behavior of the applicant - accused clearly goes on to show the "guilty intention" and/or "mens rea" on the part of the present applicant - accused.
10. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the case of the prosecution is solely based upon the circumstantial evidence and during the investigation, certain incriminating articles have been recovered by the concerned IO by drawing recovery and discovery panchnama. The golden ring, bracelet and certain pieces of mangalsutra were recovered from the place of occurrence, from where the dead body was found and identified by the close relatives of the deceased. Not only that, the distance of place of occurrence as well as the place where the dead body was buried is more than 15 Kms. and as per the case of the prosecution, on the date of incident, the Page 8 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined present applicant had called his brother-in-law to the place of occurrence (his house) and informed him that "Sweety" (deceased) is not found available at home and by saying so, he has gone in search of her. As per the case of the prosecution, the dead body of the deceased was buried on 05.06.2021 at distanced place and on both days, mobile location of the applicant - accused is found at that particular place.
11. It is required to be mentioned at this stage that the present applicant is a Police Inspector and during his tenure while serving as Police Inspector, he has carried out investigation in number of cases and thus, he is aware about the entire procedure as to how the evidence are to be collected. Over and above that now the trial has commenced and more than 43 witnesses have been examined by the prosecution. From the material available on record so far, prima facie the involvement of the present applicant is clearly found out.
12. I have also considered the principles enunciated in the decisions upon which reliance has been put by learned advocate for the applicant. It is not in dispute about the principles laid down by the Hon'ble Supreme Court in the said decisions, however perusal of those judgments, it is found out that the facts of present case is different than the facts mentioned in those decisions and, hence, those decisions are not applicable to the Page 9 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023 NEUTRAL CITATION R/CR.MA/14068/2023 JUDGMENT DATED: 02/11/2023 undefined facts of the present case.
13. Therefore considering the above factual aspects and the gravity of the offence and the role played by the applicant - accused in the commission of crime, I am of the opinion that this is not a fit case, wherein discretionary power can be exercised in favour of the present applicant. Hence, the present application is rejected.
14. However considering the fact that the applicant is in jail since last more than 27 months and the trial has already commenced and more than 43 witnesses have been examined, it is expected that the concerned Court shall expedite the trial and conclude the same as expeditiously as possible preferably within a period of 12 months from the date of receipt of this order.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 10 of 10 Downloaded on : Thu Nov 02 20:50:07 IST 2023