Gujarat High Court
Arab Aadam Abdulla Boliya vs State Of Gujarat on 25 March, 2021
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/22508/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22508 of 2019
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ARAB AADAM ABDULLA BOLIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATY, SENIOR ADVOCATE assisted by MR ASHISH M
DAGLI(2203) for the Applicant(s) No. 1
MR AD SHAH(733) for the Respondent(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 25/03/2021
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being I-CR No.84 of 2018 registered with Mundra Police Station, Kutch for offence under Sections 302, 307, 143, 147, 148, 149, 323, 324, 34, 201, 504 and 427 of the Indian Penal Code and Section 135 of the Gujarat Police Act.
2. Learned Senior Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. It is submitted that it is a case of over-implication as all the family members have been sought to be implicated and therefore, the applicant is also implicated only on the ground that Page 1 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER the applicant is also one of the family members and that no overt act is attributed to the applicant.
2.1 It is submitted that it is a case of cross-case and the cross-case filed is also for offence under Section 302, IPC and in the incident, the applicant has also lost two of his family members, viz. father and son. It is submitted that the applicant is the only person who is in custody. Otherwise, rest of the accused have already been enlarged on regular bail. It is submitted that in fact, the complainant and his associates came at the residence of the applicant with deadly weapons and in fact, everything was found in CCTV footages. It is in fact noticed that CCTV camera was damaged and everybody was having weapons in his hand which they have used by giving indiscriminating blows. It is submitted that two persons from the family of the applicant have also lost their lives in the attack made by opposite party with deadly weapons. It is submitted that in this regard, complaint is also filed by the applicant being I-CR No.85 of 2018, Mundar Police Station. It is submitted that Shakinaben, who was Sarpanch of villave Chasra had two sons, viz. Abdul aged 28 years and Aabid aged 25 years and daughter Nazeem who resides nearby. It is stated in the FIR filed by Arab Aadam that on 23.10.2018 at about 10 O'clock during night, when he was near his house, at that time, four- wheeler car came bearing No.GJ-12-AK-2802, from which Bharat Maza Ahir, Maga Maza Ahir, who was known as Neem, having pipe, Page 2 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER and Chetan Naran, all four came out of the car. Bharat and Chetan used abusive words standing outside the house of the complainant and at that time, Bharat tried to break open the CCTV camera outside the house of the complainant. As the complainant requested not to do so, all four got excited and started assaulting with stick and pipe. At that time, Shakinaben, who tried to intervene, was also assaulted with pipe blows. As Aabid fell down, father of the complainant Aadambhai came to him. At that time, Magan Maza Ahir and Neem inflicted injuries with iron pipe so also on the head of Chetan. It is submitted that Bolero car came during this period of time and it was also parked near the house of the complainant. Bharat Maza started Bolero car and ran over car from Aabid, who was lying. It is submitted that damage was also caused to the house. The injured were thereafter taken to Sterling Hospital, Mundra, were son and father of the complainant were declared dead. The complainant had also sustained serious injuries on his head, leg and other body parts. It is submitted that the reason for this incident was that before 2 years back, there was election for the post of Sarpanch of village Chasras, where the seat was reserved for ladies. The wife of the complainant contested on the post against one Raniben, wife of Chetan. However, as Raniben lost, keeping grudge, the incident occurred. 2.2 It is submitted that the deceased and his associates came for the purpose of making assault at the resident of the Page 3 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER applicant. They have not only started making assault by entering into the house and had also damaged the car. It is submitted that in fact, after causing injuries to Aabid, they ran the car over him. It is submitted that in fact, it was apprehended by Shakinaben earlier that there is likelihood of attack and therefore, an application was given on 10.10.2018 to the Police Inspector, Mundra Police Station on the letterhead of Chasra Gram Panchayat. It is submitted that in fact, the accused came with preplanned manner and attacked the resident of the applicant. It is submitted that CCTV footages in which the incident is captured, on the contrary revealed that it is the complainant and his associates not only came at the place but started making hue and cry and then started making assault at the residence of Shakinaben. Under the circumstances, there is no prima facie case against the applicant. It is submitted that the applicant himself sustained injuries and was admitted in hospital and was discharged on 29.10.2018. It is submitted that arrest of the applicant was shown by police on 02.11.2018. 2.3 The applicant had preferred application for regular bail before the 6th Additional Sessions Judge, Bhuj-Kutch, which was rejected by order dated 24.10.2019.
2.4 Learned Senior Advocate for the applicant strongly argued for bail on the ground of parity by citing several orders of this Court as well as Sessions Court.
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R/CR.MA/22508/2019 ORDER
3. Learned APP appearing on behalf of the respondent- State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the case of the prosecution against the applicant is the accused namely Aarab Aadam Boliya and the complainants were holding grudge against each other since the last election of Gram Panchayat. Therefore, accused Shakina Aarab had submitted application to police against the deceased Mangal Myajar Chavda. Holding grudge about it, the accused in this case Aabid Aarab Boliya, in his Bolero car, reg. no. GJ.12.CD.669 reached to Panjrapol chawk of the village where complainant Ritesh Myajar, Bhargav Pancha, Jigar, Chetan Naran, Mangal Myajar were sitting. Upon reaching there, the accused started hurling abuses at Mangal who was sitting on the tractor. Mangal asked him not to abuse. He instigated Mangal by abusing him. Thereafter, he hurled abused at Bharat Myajar near his house at Ahirvas and instigated him and then fled in his Bolero car from Bharat's house. Therefore, when Bharat was going to complain to his father Aarab, in his Ritz car, Mangal and Chetan, by tractor and the complainant Ritesh, Bhargav and Jigar followed him with motorcycle. When Bharat reached to his house, Aabid got down from his Bolero car and Bharat started to talk about the abusive language. He brought spear from his house. Meanwhile, the accused Shakinaben also threw weapons from the balcony and instigated to kill the complainant and witnesses. They attacked Mangal and Chetan who had arrived by tractor. The accused Aabid Page 5 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER inflicted grave injuries by spear and accused Shakina Aadam, Jalabai and Reshma inflicted grave injuries by sticks to Mangal and caused his death. Chetan escaped from the scene upon attack and while chasing him, accused Aarab intercepted complainant Ritesh, Bhargav and Jigar and inflicted injuries to Bhargav with his knife. Meanwhile, Aabid reached there and he also inflicted grave injuries to Bhargav with spear and as Bhargav collapsed, the accused Anvar Aamad, Mustak Aamad, Gani Luhar also inflicted injuries to Bhargav with sticks. Upon attacking Bharat, Ritesh and Jigar and when they tried to escape, Aabid chased Bharat and knocked him down by inflicting injuries by his spear. While Chetan was trying to put injured Bharat in Ritz car, Aabid inflicted injuries to him with spear and he was struggling for life lying on ground. At that time, Aarab instigated in his language that no one should be spared. At that time, Shakina, Jalabai, Aadam, Abdul Aarab, Salemamad, Anvar Amad, Mustak Amad and Reshma Iqbal began to beat Chetan who was struggling for life with their weapons and caused his death. Meanwhile, as it came to know to the other witnesses, they came there to save the injured. At that time, Shakina, Jalabai, Aadam, Anvar Amad, Mustak Amad and Abdul Aarab and Abid caused injuries to complainant Ritesh by assaulting them. At that time, accused Abdul Aarab Boliya drove his Bolero car at full speed towards the persons of Ahir community, who were standing there, with an intention to cause their death. As the Ahirs moved, it went towards the motorcycles of complainant, dashed with motorcycle Page 6 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER and Bharat's Ritz car which were lying there and caused damage and injured to the complainant. In furtherance of their common intention the accused persons of this case, gathered, assaulted on the complainant and witnesses with deadly weapons, pelted stones and caused injuries and then caused death of the complainant and witnesses including, (1) Bharat Myajar Chavda, (2) Mangal Myajar Chavda, (3) Chetan Naran Chavda, (4) Bhargav Panchabhai Chavda. The accused persons destroyed evidences, washed and hid the clothes worn at the time of incident and burnt the weapons used at the time of the incident.
3.1 Learned APP also opposed the grant of regular bail by submitting that prima-facie case against the applicant/accused is that the accused, in collusion with other accused persons, by playing individual roles, caused the death of four young persons with deadly weapons by inflicting grave injuries created "Massacre"", and thus, they committed 'grave kind of offence affecting the human body'. It is submitted that as a part of evidence regarding involvement of the applicant/accused in the case, direct presence of the applicant/accused while committing the grave offence, is found in the footage of CCTV placed in public place. This important evidence is found against the applicant / accused. Upon receiving call details of the applicant / accused, his presence is found at the scene of offence. There is also an electronic evidence containing constant conversation on mobile Page 7 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER phone. The accused persons remained absconding for long time to avoid the arrest and destroyed the evidences against them and thus, by committing an offence and destroyed the important evidences by setting the used weapons on fire and washing the worn clothes at the time of offence.
3.2 It is submitted that as per the F.S.L. report, the presence of the blood group (O) is found on the weapon - knife which is seized from the accused, and the same is found to be the blood group (O) of the deceased. It is submitted that As the clothes of the deceased of this case, weapons and mobile phones of the accused persons have been seized in presence of the Panchas, sufficient evidence is found about the criminal involvement of the accused of this case. The weapon - knife, which was used by the accused of this case to commit the offence has been seized on 04- 11-2018 as per the details of Discovery Panchnama, which is the evidence against the accused.
4. Learned Advocate Mr.A.D.Shah for the original complainant submitted that there were 8 eyewitnesses and weapons came to be discovered. The IO also pointed out about seizure of cloths of the accused who were absconding after the incident. However, the IO also relied on the complaint given by Arab Aadam Boliya which was registered as I-CR No.85 of 2018. The IO also brought to the notice of the Court about the CCTV footages and mobile call details. The panchnama of the scene of Page 8 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER offence also clearly substantiated the complaint of the complainant- Ritesh.
4.1 It is submitted that it is also the case of the prosecution that Abid Arab had gone in his Bolero can and picked up quarrel with Mangal who was on tractor. The deceased Bharat Myazar had gone in his Ritz car to the residence of Arab to complain about the conduct of Abid. Thus, the accused persons who were at their residence started assault with weapons. The complainant clearly attributed different weapons possessed by the accused and pointed out the infliction of blows by accused No.2-Abdul Arab with spear, accused No.4-Arab Aadam with knife, accused No.3-Shakibaben with Koyta (small cutting sickle) to deceased Bharat Myazar, Mangal Myazar, Bhargav Pancha and Chetan Naran. The postmortem reports clearly substantiate the case of the complainant about infliction of injuries by these different types of weapons on deceased. It is submitted that damage caused to Bolero car and truck bearing No.GJ-12-V-8562 which is also supported by spot verification report by FSL officer. Thus, four persons lost their lives when they had gone to complain about the conduct of Abid Arab.
4.2 It is submitted that complaint of accused Arab Aadam revealed that Bolero car was lying near their house and key was inside the car. It is further alleged that accused Bharat Myazar sat in the said car and drove their car in zigzag manner and drove on Page 9 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER Abid Arab who was lying on the ground and also collided with the wall and thereby caused damage to Bolero car. It is submitted that FSL report of spot verification clearly belies this version and substantiates the prosecution case that this Bolero car was collided with truck lying there. This, this complaint filed by accused Arab Aadam clearly name four accused who are deceased persons. 4.3 It is submitted that in the charge sheet in I-CR No.84 of 2018, the IO has attributed role to the complainant in his complaint and introduced new version about Abid getting down from Bolero car and coming out with spear from the house and inflicting blows on Mangal with spear. Similarly, further role is attributed to Abid in inflcting blows with spear on Bhargav and thereafter, Abid chasing Bharat and inflicting blows with spear. It is further alleged that Abid also inflicted spear blows on Chetan who was trying to place injured Bharat in Ritz car. Thus, deceased Abid, who was not alleged to have been armed with spear, has been shown to have caused injuries by spear to all the four deceased. Thus, the investigation has proceeded contrary to the contents of the FIR, whereby the accused persons of I-CR No.84 of 2019 get clear benefit of such contradictions.
5. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.
6. As per order dated 26.02.2021, CCTA footages were Page 10 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER made available and with consent of both parties, the Court has perused the same through the pen-drive.
7. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers. Following aspects are considered:-
I) The F.I.R. is registered on 24-10-2018 for the offence which is alleged to have taken place on 23-10-2018;
II) The applicant in connection with offence, has been arrested on 29-10-2018 and since then in custody;
III) Investigation is concluded and charge-sheet is filed;
IV) Learned Senior Advocate for the applicant submitted that the trial pertains to the multiple murder case, where the cross F.I.R.s' have been filed on the applicant side.
V) Learned Senior Advocate for the applicant submitted that the applicant has lost his father and son in the incident, whereas in the FIR filed against the applicant, four persons have lost lives. In the present offence, four persons have lost lives where the applicant has arraigned as accused no.4.
VI) Learned Senior Advocate for the applicant submitted that from the evidence on record, it appears that the offence has taken place just outside the residence of the applicant and his relatives and apparently, the complainant side had reached the place of offence in vehicle and armed with dangerous weapons.
VII) Learned Senior Advocate for the applicant submitted that in the assault carried out, the applicant is alleged to have used the knife, which has been discovered at his behest during the course of the investigation. At the same time, the applicant himself has also received serious injuries.
VIII) Learned Senior Advocate for the applicant submitted that the co-accused - family members of the applicant have also been enlarged on regular bail by this Court as Page 11 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER well as by the Sessions Court. Hence, applying principle of parity.
IX) Learned Additional Public Prosecutor under the instructions of the Investigating Officer is unable to bring on record any special circumstances against the applicant.
8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
9. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
10. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being I-CR No.84 of 2018 registered with Mundra Police Station, Kutch, 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 & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected Page 12 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022 R/CR.MA/22508/2019 ORDER by the police;
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;
(e) not to enter Taluka-Mundra till the completion of the trial except for marking presence and attending trial;
(f) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;
(g) 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 Trial Court;
11. The authorities 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.
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 applicant on bail. Page 13 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022
R/CR.MA/22508/2019 ORDER
14. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
15. At this stage, learned Advocate Mr.A.D.Shah for the original complainant prays for staying operation of this order as charge is already framed so as to enable the original complain to approach higher forum.
16. In view of the aforesaid development, the order is stayed for 10 days from today.
(A.Y. KOGJE, J) SHITOLE Page 14 of 14 Downloaded on : Thu Jan 13 12:15:01 IST 2022