Gujarat High Court
Ajay Himmatbhai Kalal vs State Of Gujarat on 23 May, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/5077/2021 ORDER DATED: 23/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5077 of 2021
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AJAY HIMMATBHAI KALAL
Versus
STATE OF GUJARAT
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Appearance:
MR JM PANCHAL, SENIOR COUNSEL WITH MR SUNIL S JOSHI(2925) for
the Applicant(s) No. 1
MR MITESH AMIN, PP WITH MR. MANAN MEHTA, APP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/05/2022
ORAL ORDER
1. This regular bail application is filed by the applicant under Section 439 of Cr.P.C, seeking his release on regular bail in connection with FIR being C.R. No.11821030200568 of 2020 registered with Jhalod Police Station, District: Dahod for the offences punishable under Sections 302, 303 read with Section 120-B of IPC.
2. The case of the prosecution is that, criminal conspiracy alleged to have been formed to commit the murder of Hiren Patel, resident of City: Jhalod, District: Dahod. Accused numbering 1 to 9, including the present applicant have hatched a criminal conspiracy to kill deceased and in furtherance of said conspiracy, the work was entrusted to accused no.3 Irfan Pada, through accused no.4 Ajay Kalal and accused no.7 Imran Gudala, by accused no.8 Amit Katara, who had a political animosity with the deceased.
3. The alleged incident took place in early morning of 27.09.2020 between 5:30 a.m. to 6:30 a.m. when deceased Hiren Patel was on his regular morning walk and when he was on Jhalod to Dahod Road, he was hit by speeding pick up loading vehicle from behind Page 1 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 and after that, the driver with the vehicle fled away. During the course of investigation and considering the statement of witnesses and after making analysis of call details, C.C.T.V footage, it was revealed that due to political differences, the criminal conspiracy as referred above in para-1 had been hatched to kill the deceased by using vehicle so that the whole incident seen as an accident.
4. The outcome of the investigation revealed that, deceased Hirenbhai was elected Councilor of Jhalod Municipality, whereas, wife of accused no.8 Amit Katara, namely Kinjalben was being a Councilor, elected as President of Municipality, for a period of two and half years. In August-2020, the election was due for President and Vice President of Municipality. Deceased was in opposition party, representing BJP. The municipality body was ruled by Congress party and both President and Vice President were elected from the party, on account of majority of ruling body. Next election of President and Vice President was scheduled to be held on 26.08.2020. The deceased being an active member of rival group, managed to win over the councilors of ruling body and before election could held, deceased along with ruling party councilors, went to different places on tour and on the day of election, i.e. on 26.08.2020, they came back at Jhalod. Despite the whip issued by the Congress party, the councilors from the ruling party made cross- voting, as a result of which, as per the understanding made amongst the members, the Vice President Sonalben, though represented to the Congress party, was elected as President of Municipality with the support of opposition councilors and one Nandaben Vaghela, elected as Vice President who had fought election as independent candidate.
5. It is further case of the prosecution that, due to unexpected result of election, the accused no.8 Amit Katara being an active politician, having political grudge, accused no.4 Ajay Kalal supporter Page 2 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 of ruling party, decided to eliminate the deceased as they do not like the domination on the deceased on the municipal body, they formed criminal conspiracy to kill deceased Hirenbhai. The accused no.4 Ajay Kalal was given green signal from Amit Katara to execute the object of criminal conspiracy. Accused Ajay Kalal in consultation with accused no.7 Imran Gudala, contacted accused no.3 Irfan Pada, resident of Godhra, who has been convicted in connection with Godhra carnage and is sentenced to undergo life imprisonment. At the time of meeting, the accused no.3 Irfan Pada after release from jail on parole leave, he did not reported to the Jail Authority and was absconding.
6. It is further case of the prosecution that, as a part of large conspiracy hatched by the accused no.8, 4 and 7, the accused no.3 Irfan Pada agreed to eliminate deceased Hirenbhai for a consideration of Rs.20 lakhs for which he received Rs. 2 lakhs in advance by accused no.4 Ajay Kalal.
7. It is further case of the prosecution that, accused no.3 Irfan Pada was given necessary inputs of daily routine of deceased Hirenbhai by accused no.4 and 7, as deceased used to go on morning walk between 5:30 a.m. to 6:30 a.m. on the road going from Jhalod to Dahod. Accused no.3, arranged the meeting with accused no.2, accused no.5 and accused no.6 at the Dhaba (Highway Eatery) and decided to eliminate the deceased by using pick up loading vehicle. The accused no.6, arranged for bolero car bearing registration No.MP-09-CK-4981. On 26.09.2020, the accused no.1, 2, 3 and Irfan Bhisti were proceeded from Mahidhpur, Madhya Pradesh at about 8:30 p.m. in two different vehicles i.e. Mahindra Bolero car and Ford Figo Car. The Ford Figo Car, was parked at Railway Station, Dahod by accused no.3 and thereafter, all the accused, proceeded towards the place of incident in a Bolero Car. It is further case of the prosecution that, they had cup of tea, at the Page 3 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 tea stall run by witness Chetan Machar near Muvada Crossroad, Jhalod a place proximate to the place of commission of offence. It is further case of the prosecution that, till end of incident, the accused were in contact with each other on their mobiles. It is further case of the prosecution that, before the incident took place, the accused no.3 and accused Imran Gudala, conducted reiki and thereafter, as per plan, when deceased was on his regular morning walk, was hit by speeding pick up loading vehicle, alleged to have been he was given a dash by pick up loading vehicle, alleged to have been arranged by the accused no.3. Thereafter, the incident, the driver fled away along with the vehicle. Deceased was brought dead to the hospital.
8. It is further case of the prosecution that, son of the deceased namely Panth disclosed before the police authority expressing his apprehension that due to political rivalry, someone caused fatal injuries to his father or he was intentionally hit by the vehicle. Initially, police has registered A.D. Case under Section 173 of Cr.P.C. During the course of investigation, statements of the son of deceased and his wife were recorded, wherein reference was made about election of President and Vice President of the Municipality. It was revealed during the investigation that the bolero car used by the accused and in furtherance of the conspiracy hatched by the accused, his father was killed by using vehicle for which contract killing was given to accused Irfan Pada. The Deputy Superintendent of Police, Dahod lodged an FIR on 13.10.2020 wherein name of the accused no.1 to 5 have been disclosed and there was also reference of the name of accused no.8 and driver of vehicle. The accused were arrested and they have been chargesheeted. Thereafter, name of Amit Katara - accused no.8 who is the main conspirator of the alleged incident emerged during the course of investigation and later on, he as well as his aid Imran Gudala - accused no.7 arrested on 31.12.2020 and also chargesheeted. Both the cases have been Page 4 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 committed to the Sessions Court, Dahod which came to be registered as Sessions Case No.10/2021 and 49/2021.
9. This Court has heard Mr. J.M. Panchal, learned Senior Counsel assisted by Mr. Sunil S. Joshi, learned counsel for the applicant and Mr. Mitesh Amin, learned Public Prosecutor assisted by Mr. Manan Maheta, learned APP for the respondent-State.
10. Mr. J.M. Panchal, learned Senior Counsel for and on behalf of the applicant herein, raised the following contentions:
(i) That the applicant herein has been falsely implicated in the alleged offence as he did not have played any role in the entire incident, nor he was a part of the conspiracy as alleged;
(ii) That the offence alleged to have been occurred on 27.09.2020, whereas, the complaint is lodged on 13.10.2020 i.e. there is a delay of 15 days, for which, no reasonable explanation is forthcoming. According to case of the prosecution, initially, the accidental death was being registered and thereafter, Deputy Superintendent of Police, Dahod being a complainant lodged the FIR which itself speaks voluminous about the misuse of power by the authority and further it seems that the FIR after delay of 15 days is an afterthought and has been lodged with an ulterior motive to implicate the applicant herein in the alleged offence.
(iii) That in the entire FIR, there is no any specific role being assigned to the applicant herein and he has been implicated in the alleged offence on the basis of statement of co-accused.
(iv) That the prosecution case is based on circumstantial evidence. It has been consistently laid down by the Apex Court Page 5 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 in its various judgments that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused and circumstances from which guilt is drawn should be fully proved and there shall be no gap left in the chain of evidence. In a case of circumstantial evidence, motive assumes great significance, for the reason that Court has to ensure that suspicion, emotion or conjecture do not take place of proof. In view of the settled law, it was submitted that in the facts of present case, there is no evidence to suggest that the applicant herein acted on behalf of accused Amit Katara and met the accused Irfan Pada for execution of object of the alleged conspiracy. According to submission of learned Senior Counsel, in this case motive was to eliminate deceased, which is completely unfounded as Sonalben Dindor, on the basis of whip issued by the Congress party was appointed as President of Municipality and therefore, deceased was never in control of ruling body. In these circumstances, the election result was the motive behind the offence cannot be believed and accepted. It was further submitted that there is no any material to indicate that, overt act on the part of the applicant in execution of the object of criminal conspiracy. Nothing being recovered or seized from the applicant herein to show his involvement in the alleged offence. Except, call details, no any evidence collected by the investigating agency to prove that he had acted for and on behalf of Amit Katara and held meetings with Irfan Pada and also paid Rs.2 lakh in advance. Thus, therefore, on the basis of statement of co-accused and the call details, it cannot be said that the applicant was part of the criminal conspiracy and was involved in causing death of the deceased.
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(v) That it is admitted fact that the vehicle pick up commercial vehicle, which has caused the death of the deceased still is not traceable and there is no any clue found by the investigating agency about its whereabouts and therefore important link is missing which is one of the circumstances to complete the entire chain of evidence.
(vi) That there is a contradiction in the medical evidence and the injuries suffered by the deceased. If vehicle is hit from behind, then, there must be found fracture injuries on the vital part of the body. In the present case, in column no.18 of the postmortem report, only incised wound noticed on partial occipital region of head of the deceased. Therefore, looking to the injury mentioned in the P.M. Report, the theory of hitting the deceased from his back is not established and therefore, the important circumstances does not get support from the medical evidence and on this count, the involvement of the applicant clearly established that he has been arrested on the basis of suspicion and conjectures.
11. In view of the aforesaid submissions, learned Senior Counsel Mr. J.M. Panchal submitted that there is no prima-facie case against the applicant herein and considering the various lacuna in the case of prosecution in establishing the chain of circumstantial evidence, the case is made out to release the applicant on bail. Mr. Panchal, learned Senior Counsel on the issue of past antecedents clarified that, in some of the cases the applicant herein acquitted by the Court concerned and so far other two cases are concerned, he has been released on bail and all the cases are for alleged commission of offences under the Gujarat Prohibition Act. Thus, as such, there is no any past antecedent of like nature. Chargesheet has been filed by the investigating officer and therefore, question does not arise to temper with the evidence. Since 15.10.2020, the applicant is in jail Page 7 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 and trial may not be completed in a reasonable time.
12. In the circumstances as referred above, learned Senior Counsel submitted that the applicant may be enlarged on bail, imposing suitable conditions.
13. Mr. Mitesh Amin, learned Public Prosecutor vehemently opposed the application. It was submitted that the learned Sessions Judge has assigned cogent and sound reasons while rejecting the application and therefore, no interference is warranted by this Court. It was submitted that, on account of political changes in the election of President and Vice President of Jhalod Municipality and considering the domination of deceased Hiren Patel, who was Councilor of Municipality and was assigned heavy responsibility by the party which he was representing, the accused no.7 Amit Katara and the present applicant hatched the conspiracy to eliminate the deceased as deceased was on the driver seat of the Jhalod Municipality which ultimately affect the vested interest of the accused herein. In this context, learned Public Prosecutor submitted that the accused have formed criminal conspiracy to kill the deceased and in furtherance of the conspiracy, contract killing was given to accused no.3 Irfan Pada by the present applicant and accused Amit Katara. He urged that when the applicant was at Vadodara Jail, he met accused no.3 Irfan Pada and since then, they were in constant touch, as a result of which, they held series of meetings to eliminate the deceased. In this context, it was submitted that motive to kill the deceased is established. The C.D.R details clearly established that the applicant and co-accused were in constant touch prior to the incident and after the incident. The investigating agency collected C.C.T.V. footage from various points and more particularly, on the day of incident i.e. on 27.09.2020 at about 00:11:43 to 8:01:43, the applicant was in conversation through mobile and/or whats app with the accused Amit Katara and Page 8 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 Irfan Pada.
14. In view of aforesaid submissions, learned Public Prosecutor submitted that in the case of criminal conspiracy, direct independent evidence is generally not available and therefore, considering the conduct of the applicant and supporting evidence collected during the course of investigation, it can be inferred, the involvement of the applicant herein in the alleged offence.
15. In support of his submissions, reference was made by learned Public Prosecutor on the judgment of Supreme Court rendered in case of Harjit Singh V/s. Inderpreet Singh alias Inder and Another reported in 2021 SCC OnLine SC 633, contending that at this stage, it is not expected to have the entire evidence establishing guilt of the accused beyond reasonable doubt, but, a prima-facie satisfaction of the Court in support of the charge. Thus, therefore, there is a prima-facie ground to believe that the accused is involved in the alleged offence. Lastly, it was submitted that the applicant has criminal record as cases under the Prohibition Act have been registered with different police stations of District:
Dahod. The applicant being a supporter of the political party, if bail is granted, there is a reasonable apprehension of the witnesses being influenced by him and therefore, considering the nature of accusations, severity of the punishment and the nature of evidence in support of the charge, no case is made out for exercising discretion by this Court for releasing the applicant on bail.
16. This Court has considered the facts and circumstances of the present case as well as submissions made by learned counsel appearing for the respective parties and carefully perused the chargesheet case papers.
17. Before proceeding further, it is beneficial to refer to and rely Page 9 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 on the settled principle of law and parameters to be followed and considered by the Court while rejecting or allowing bail application.
18. In case of State of U.P. v. Amarmani Tripathi reported in 2005 8 SCC 21, the Apex Court in para-18 held as under:
"It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tempered with; and (viii) danger, of course, of justice being thwarted by grant of bail"
19. In the case of Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas reported in (2002) 3 SCC 598, the Apex Court laid down the factors, for exercising the power to decide the bail application, observed that, it is not expected by the Court to have the entire evidence establishing the guilt of the accused beyond reasonable doubt, but there ought to be a prima-facie satisfaction of the Court in support of the charge. It is further observed by the Apex Court that, whether case is fit for grant of bail involves the balancing of numerous factors, amongst which nature of offence, severity of punishment and prima-facie view of the involvement of the accused are important. No straight jacket formula exists for Courts to assess an application for grant or rejection of bail as it all depends on the peculiar facts of the case.
20. In light of settled principles and parameters as referred above and considering the facts and circumstances of the present case, this Court is of view that due to anti social activities of the applicant herein, he was detained under the Preventive Laws and was sent to Vadodara Central Jail where he met accused no.3 Irfan Pada and since then, they were in touch. The applicant herein is supporter of Page 10 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 ruling party of Jhalod Municipality as well as the accused Amit Katara and his family. In that view of the matter, considering the statements of witnesses and C.D.R. i.e. call detail records, it is prima-facie proved that since 24.09.2020 to 27.09.2020, he was in continuous touch with the accused Amit Katara, Irfan Pada. The most important evidence is the details of I.P.D.R. which indicates that on the day of incident, from midnight to early morning, the applicant Ajay Kalal was in constant touch with the accused Amit Katara and accused Irfan Pada. Therefore, conversation with the co- accused in the early morning and considering the evidence collected by the investigating agency, it cannot be said that the applicant herein has been falsely implicated in the alleged offence and as such there is no evidence against him. This Court is of prima-facie view that there is a reasonable ground to believe that the applicant herein is involved in the offence. The contentions raised by the applicant are to be dealt by the time of trial at the time of recording of evidence. It is apt to refer to and rely on the case of Prahlad Singh Bhati vs. NCT (Delhi) 2001 4 SCC 280, wherein it was observed that, while deciding the bail application, the court concerned shall keep in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing", instead of evidence, which means the court dealing with the grant of bail can only satisfy it as to whether there is genuine case against the accused and that the prosecution will be able to produce prima-facie evidence in support of the charge. The investigating agency obtained internet protocol detailed record, called as 'IPDR' so as to enable them to track internet based voice calls. In the facts of present case, as discussed herein above, the applicant and co-accused made conversation on his mobile phone and therefore, it cannot be termed as routine call as usual made by the parties.
21. For the foregoing reasons, without expressing anything on Page 11 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022 R/CR.MA/5077/2021 ORDER DATED: 23/05/2022 merits of the prosecution case, this Court is of prima-facie view that, the involvement of the applicant-accused is established and therefore, considering the nature and gravity of accusations, severity of punishment and interest of the society at large and having regard to the circumstances as discussed herein above, this Court is not inclined to admit the applicant on bail.
22. Accordingly, present application stands dismissed. Rule is discharged.
(ILESH J. VORA,J) TAUSIF SAIYED Page 12 of 12 Downloaded on : Sat Dec 24 17:24:48 IST 2022