Gujarat High Court
Vinubhai Haribhai Patel ( Kathrotiya ) vs State Of Gujarat on 23 January, 2014
Author: Anant S. Dave
Bench: Anant S. Dave
R/CR.MA/1079/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 1079 of
2014
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VINUBHAI HARIBHAI PATEL ( KATHROTIYA )....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR YS LAKHANI with MR PRAVIN GONDALIYA, ADVOCATE for the
Applicant(s) No. 1
MS HANSA PUNANI APP for the Respondent(s) No. 1
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CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 23/01/2014
ORAL ORDER
1. Rule. Learned APP, waives service of rule on behalf of respondentState.
2. This application is filed under Section 439 of the Code of Criminal Procedure in connection with first information report registered at C.R. No. I470 of 2011 with Umra Police Station, District : Surat, for the offences punishable under Sections 302, 120B, 34, 182 and 212 of the Indian Penal Code and Section 135 of the Bombay Police Act.
3. The case of the prosecution is recorded by the learned Judge in the judgment dated 07.10.2013 and for the sake of convenience it is reproduced herein below : "2. Heard learned advocate Shri G.J. Desai for the applicant. He submitted that as per the FIR, the alleged Page 1 of 7 R/CR.MA/1079/2014 ORDER incident has taken place on 29.12.2011 and the deceased Amit Kapasiawala was done to death opposite to the Court premises in the morning at around 10:30 a.m. When he came out of the prosecution premises and was about to sit in his car. As per the case of prosecution, there was a larger conspiracy hatched by the accused persons to kill the deceased Amit Kapasiawala with an ulterior motive to grab the land owned and possessed by himself and hi family members being Revenue Survey No. 262 at Gaviyar. The present applicant has been arrested in the present offence only on the basis of allegation of conspiracy and since 25.01.2012, he is in judicial custody. The present applicant has not played any active role in commission of the offence in question. He further submitted that the earlier bail application being Criminal Misc. Bail Application No. 287/2013 filed by the applicant was dismissed by this Court vide order dated 08.08.2013.
3. It is further submitted that the case of the prosecution against the present applicant is solely based on the statement of Dilip Vasoya. If the statement of Dilip Vasoya is perused, there are very many contradictions, which would make the statement of this witness unreliable. As per the statement of this witness, the present applicant had arranged for money to be given to the contract killer. There is nothing on record to indicate that the money to be given to the contract killer was arranged by the present applicant. In fact, as per the statement of Dilip Vasoya, money was given to him by Kanubhai Haribhai Patel, who has been enlarged on bail. It is further submitted that the motive behind the of fence in question is land bearing Survey No. 262 situated at Gaviyar. As per the case of prosecution, another coaccused in the present case namely Dr. Ashok Panchani was interested in the said land and had an intention to usurp the said land by any means. There is nothing on record to indicate that the present applicant had ever contacted the contract killer or had any communication with him. If the present applicant was part of conspiracy as per the case of prosecution, there would have been some iota of evidence, which would prima facie point finger towards any such conspiracy. In Page 2 of 7 R/CR.MA/1079/2014 ORDER absence of any such material against the present applicant, there is no prima facie case against the present applicant, which would indicate that the present applicant is involved in commission of the crime in question. It is further contended that the present applicant has been in custody for a period of more than 11/2 years and still the committal proceedings have not culminated into committal of case to the Sessions Court. Therefore, the trial of the case has been unreasonably delayed and incarceration of the applicant till the conclusion of trial would amount to great injustice and the same would defeat the cause of justice. The other six coaccused persons have already been enlarged on bail. Considering the material collected in evidence against the present applicant, it was submitted to enlarge the applicant on ail and allow the present application, subject to suitable conditions."
4. The nature of allegations against the applicant are for the offences punishable under Section 302 read with Sections 120B, 34, 182 and 212 of the Indian Penal Code and Section 135 of the Bombay Police Act. According to Mr. Y.S. Lakhani, learned Senior Counsel appearing on behalf of the applicant, even after filing of the charge sheet and bare reading of FIR, there is no evidence against the applicant and only on the basis of suspicion, the so called alleged larger conspiracy hatched to kill one Amit Kapasiawala with ulterior motive to grab the land. Nothing appears from the record. Even the coaccused persons are enlarged on bail and the applicant is in custody for about more than two years and 140 witnesses are to be examined and the trial is likely to prolong and under the above circumstances, the applicant deserves to be enlarged on bail.
5. Having heard learned counsel for the respective parties and upon perusal of the record of the case and well reasoned order passed by the learned Additional Sessions Judge, Surat to which, I am in complete agreement with the reasonings given by the Court Page 3 of 7 R/CR.MA/1079/2014 ORDER below in paragraph nos. 5,6, 7 8 and 9 and hence, find no reasons to interfere with the same. The said paragraphs are reproduced herein below :
"5. Heard learned advocates for the parties and perused the investigation papers. The Investigating Agency has recorded the statement of Pravinchandra Rangildas Kapasiawala who is the father of the deceased on 02.01.2012. He states that, on 09/12/2011, at around 10.30 in the night, he received a phone call from the watchman placed at land bearing Revenue Survey No. 262. The watchman said that two persons had come at the main gate and had asked him to leave the possession of the land and he was threatened by those two persons. Upon receipt of the phone call, he, along with his son Amit and his friend Pradip Desai, went to the site and a tempo bearing registration No. GJ5YY3394 was found near the main gate, which was containing a board and other construction material. In a short while, to cars also arrived at the site, wherein Anil Das and Rushit Navinchandra Bhatt were present along with other unknown persons. They came out of the car and told that the land was purchased by them and that they should leave the possession of the land, or else, they would be done to death. Thereafter, since the police had arrived, those persons ran away from the site in their respective cars.
6. In this regard, the statement of another witness namely Kalubhai Chhaganbhai Desai has a significance. He, in his statement on 30/12/2011 states that, he is the owner of tempo bearing registration no. GJ5YY3394. Twenty days back, he was called by the present applicant along with his tempo at night. When he went to his house, the applicant handed over him two boards and instructed him that these boards are to be unloaded near Magdalla Cross Road and that his men would accompany him in the car. Accordingly, witness Kalubhai loaded the material handed over to him by the applicant in his tempo and went to the site. This statement indicates that the tempo which was found lying at the site when the earlier witness Pravinchandra Rangildas Kapasiawala visited the site, Page 4 of 7 R/CR.MA/1079/2014 ORDER was sent by the present applicant and the persons who came by two different cars were also sent by the present applicant and those unknown persons who had come through two different cars had threatened the said Pravinchandra Rangildas Kapasiawala and the persons accompanied him of dire consequences if they would not vacate the possession of the land.
7. The statement of Dilipbhai Bhagwanbhai Vasoya is also important for ascertaining the role of the present applicant in commission of the present offence. He, in his statement dated 12/01/2012 states that, on 30/12/2011, at around 10 O'clock in the morning, he received a phone call from Dr. Ashok Panchani that Rs.10 lacs is to be paid to Bhavsingh. He also said that he is calling Vinu i.e. present applicant and he was instructed by Dr. Ashok Panchani to hatch the money from the present applicant. Thereafter, again on 01/01/2012, at around 5 O'clock in the evening, he received a phone call from Dr. Ashok Panchani, wherein he was instructed to collect the amount of Rs. 5 lacs from Vinu. This witness also goes on to say that the present applicant and Dr. Ashok Panchani were partners and land bearing Survey No. 262 situated at Gaviyar was purchased by Ashok Panchani in partnership with the present applicant. It is pertinent to note that this witness, at the relevant time, was working in the offence of Dr. Ashok Panchani. In the statement of Dinesh @ Dhanvan Dalaji Kotak, he states that, the present applicant and Dr. Ashok Panchani were dealing in the real estate business in partnership. Another witness namely Valjibhai @ Keshri Chhanganbhai Navadia states that he was interested in purchase of land and he had called for the documents pertaining to the land from the prospective seller and upon receipt of the documents, he had gone to visit his legal advisor. At that time, the present applicant and Dr. Ashok Panchani were also present.
8. From the material discussed herein above, it prima facie appears that the present applicant was working in partnership with the another coaccused namely Dr. Ashok Panchani and both of them were interested in land bearing Page 5 of 7 R/CR.MA/1079/2014 ORDER Survey No. 262 situated at Gaviyar, which was owned and possessed by the deceased and his family members. A threat was also administered to the family members of the deceased, if they would not vacate the possession of the land in question and the said threats were administered at the instance of the present applicant. All these facts indicate very strong prima facie case against the present applicant of his involvement into the commission of present offence.
9. The present is a successive bail application and there are no change in the circumstances after the earlier bail application of the present applicant being Criminal Misc. Bail Application No. 267/2013 was dismissed by this Court vide order dated 08/08/2013. Hence, the present application being devoid of any merits, the same is hereby dismissed and following order is passed.
ORDER The present bail application is hereby dismissed." 5.2. From the record, it further transpires that the applicant has criminal antecedent in respect of First Information Report registered at C.R. No. I3 of 2012 with DCB Police Station, Surat for the offences punishable under Sections 167, 406, 420, 464, 465, 466, 467, 468, 471, 474 and 120B of the Indian Penal Code, where he is bailed out. However, in the present case, statements of two witnesses disclose nexus of crime with the applicant, role attributed and the extent of involvement in a heinous crime under Section 302 read with Section 120B of the Indian Penal Code for monetary benefits.
6. In view of the above, I am not inclined to exercise the discretion to enlarge the applicant on regular bail. The application stands rejected. Rule is discharged.
(ANANT S.DAVE, J.)
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