Gujarat High Court
Ravi Mohanbhai Parmar vs State Of Gujarat on 11 October, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/7373/2022 ORDER DATED: 11/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7373 of 2022
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RAVI MOHANBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
MR RUCHIT J VYAS(10687) for the Respondent(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/10/2022
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of respondent State. By consent, Rule is fixed forthwith.
2. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being C.R. No.A-11208037210949 of 2021 registered with Kuvadva Road Police Station, Rajkot City for offences punishable under sections 302, 504, 323, 143, 147, 148 of the IPC and section 135 of the G.P. Act. Page 1 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022
R/CR.MA/7373/2022 ORDER DATED: 11/10/2022
3. Mr. Vicky B.Mehta, learned advocate for the applicant submits that, no case under section 34 and 120B has been alleged in the FIR, while the whole sequence of the incident suggests that the deceased accompanied with complainant had gone to the mutton and fish shop of the accused - Aslamsha Fakir and Kadarsha Fakir to rebuke them since, it was alleged that because of the shop, the harassment of dogs has increased, as the dog has bitten the deceased's uncle - Samatbhai Zapda, and it is alleged that forming unlawful assembly, all the accused had given kick and fist blows to the complainant's brother - deceased Chhaganbhai. Accused - Aslamsha Fakir, Kadarsha Fakir, Gulam Hussain and the present applicant, all of them had caught hold of the deceased - Chhaganbhai from behind and friend of Aslam, Dharmesh Parmar removed the knife from his waist and gave a blow on stomach of deceased - Chhaganbhai.
3.1 It is stated that, another brother of the Page 2 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022 R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 complainant Sagram intervened and accused - Dharmesh had also assaulted him, but as he resisted with his hand, got a simple injury, and thus as per the allegation, Chhaganbhai succumbed to death.
3.3 Mr. Mehta submits that none of the ingredients of sections 143, 147 and 148 of the IPC would get attracted in connection with the present applicant, since they had no common object for assembly. Mr. Mehta submits that except accused no.4, none of the other accused were alleged to have been carrying any weapon; and further the co-accused were not aware of any weapon with the accused no.4.
3.4 Referring to the cross-complaint being FIR No.11208037210951 of 2021, Mr. Mehta submits that, Kadar Shah had given the complaint and as per the cross- complaint, the deceased had come with sickle in his hand, and had stated that, 'because of your mutton shop, there was harassment of dogs and states that his uncle was Page 3 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022 R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 bitten by the dog at his shop', and it is alleged that deceased started quarreling and he gave a blow with sickle on the head of the Aslam and it is submitted that, he was taken for treatment and as per recovery panchnama of the clothes of Aslam, the panchas had noted injury on the head of Aslam, which was treated by Doctor with stitches and when the same was asked in presence of panchas, he had informed that deceased Chhaganbhai has beaten him with sickle on his head and he had taken treatment from Rajkot Government Hospital. The clothes, which he has worn at the time of incident, were given in presence of panchas, and thus, Mr. Mehta submitted that it is stated in the complaint that the deceased had come with sickle and therefore all the accused out of the utter caution had restrained the deceased to commit any offence, but in the process Aslam Shah received injuries. Mr. Mehta submits that in retaliation, it appears that, co-accused Dharmesh must have given a single blow with his knife in the stomach area, which had turned fatal. It was, therefore, prayed Page 4 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022 R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 that the present application may be allowed and the applicant herein may be released on regular bail.
4. Mr. Pranav Trivedi, learned Additional Public Prosecutor assisted by Ruchit Vyas learned advocate for the complainant, relied on the observation of the Hon'ble Supreme Court in the case of (i) Nitu Kumar Vs. Gulveer & Anr. in Criminal Appeal No.1547 of 2022 (ii) this Court's observation in Criminal Misc. Application No.12532 of 2021 and the judgment in case of (iii) Laxman Prasad Pandey Vs. State of Uttar pradesh and Another, reported in 2021 SCC Online SC 1224, submitted that all the accused including the present applicant had facilitated the accused Dharmesh parmar in giving the fatal blow on the stomach with the very intention to kill him; and further states that no reliance could be placed on the cross-complaint, since it is an afterthought explanation of the offence committed by all the accused, and further submits that FIR is against the deceased person.
Page 5 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022
R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 4.1 Mr. Trivedi assisted by Mr. Vyas states that, main act of the present applicant along with others of having caught hold of the deceased, had assisted the main culprit to have given a blow. Had it not been so, learned APP submitted that there would not have been a case of murder, it was a pre-mandated act and therefore urged that all the accused are equally liable for the offence. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.
5. Heard learned advocates on both the sides and perused the material on record. The facts of the prosecution case suggests that the deceased and the complainant, had gone to the mutton and fish shop of Aslamsha Fakir and Kadarsha Fakir with intention to rebuke them realizing that it was because of the shop there was risk of dog bites, showing the cause of such an incident with his uncle Samatbhai; he had approached the shop and during this process, it is alleged that, all the Page 6 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022 R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 accused had beaten the deceased.
5.1 While the cross-complaint suggests that the deceased had come with the sickle and had verbal altercation, which continued as a quarrel and thereafter, it is alleged that deceased had given a blow on the head of Aslamsha with sickle and during the scuffle, as per cross-complaint, Dharmesh had given a knife blow on the stomach area of the deceased and thus he failed down. 5.2 The sequence of the incident suggests that it was the deceased and complainant, who had gone to the mutton and fish shop. The present applicant was at the mutton shop and it is stated that he was friend of co- accused and all of them had caught hold of the deceased, but the cross-complaint and the injury, which have been observed during the panchnama of Aslam Shah, suggests that the deceased had also inflicted blow, but such fact was not noted in the FIR given by the complainant, and as per the case, no injury has been caused by the applicant. Page 7 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022
R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 Taking into consideration the nature of allegation, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant.
6. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.A-11208037210949 of 2021 registered with Kuvadva Road Police Station, Rajkot City on executing a personal bond of Rs.15,000/- (Rupees Fifteen 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 India without prior permission of the Page 8 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022 R/CR.MA/7373/2022 ORDER DATED: 11/10/2022 concerned trial court;
[e] 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;
7. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, 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.
8. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.
(GITA GOPI,J) Pankaj Page 9 of 9 Downloaded on : Tue Oct 11 21:35:13 IST 2022