Amit Arvindbhai Patel vs State of Gujarat

Rajesh H. Shukla, J.—The present application has been filed by the applicant-accused for grant of regular bail u/s 439 of the Code of Criminal Procedure, which is a successive bail application after Criminal Misc. Application No. 11326 of 2010 was withdrawn vide order dated 21.10.2010.

The applicant-accused is charged with having committed offences under Sections 302, 188, 504, 114 of IPC for which FIR, being C.R. No. I-3/2010, has been registered with Kapodra Police Station.

Learned Counsel Mr. Shethna for the applicant referred to the FIR and other papers in detail and submitted that there were six witnesses who are alleged to have seen the commission of offence, but none of them is the first informant. He also referred to the FIR and submitted that there are discrepancies in the FIR which is suggestive of the fact that it is a doctored FIR. He also submitted that there is no motive attributed for the alleged offence. Learned Counsel Mr. Shethna submitted as to on what basis the statements are recorded or the theory of the prosecution suggesting the involvement of the accused is not made out. He pointedly referred to the FIR, the charge sheet and other documents and submitted that there is no reference to the specific role of the applicant accused. He submitted that, assuming without admitting, about the presence or involvement, it is not clear that the accused has given which blow on which part and therefore at this stage the court may also consider that the case would fall u/s 304 Part-II of IPC and not for the offence u/s 302. He therefore submitted that the present application may be allowed.

Learned APP Mr. Jani submitted that the present application is a successive bail application where the earlier Criminal Misc. Application No. 11326 of 2010 was withdrawn and no new grounds have been made out. He submitted that after arguing at length the earlier application as withdrawn and the scope of the successive bail application would be confined to additional grounds or the change in the material fact-situation. He submitted that there are no such grounds made out and therefore the present application may not be entertained.

Learned APP Mr. Jani also referred to the papers and submitted that in fact, as per the statement of witnesses including the eye witnesses, the presence and the role is specifically attributed to the applicant and the FIR report is corroborating the prosecution case inasmuch as the FSL report refers to two knives, one of which stated to have been used by the applicant accused is found with the blood stains matching with that of the deceased. He referred to the P.M. Report and submitted that there are 12 injuries and at this stage it cannot be decided as to who had given which blow on which part as it is a matter of appreciation of evidence at the trial.

He also submitted that the trial has already commenced and therefore considering the nature of offence which is of a grave nature u/s 302 of IPC, the present application may not be entertained. He submitted that whether the case falls u/s 304 part-II of IPC or Section 302 is again a matter of appreciation of evidence at the rial and therefore the present application may not be entertained.

Learned APP Mr. Jani has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Raghubir Singh and others Vs. State of Punjab, and also the judgment in the case of Chunni Lal Vs. State of U.P., and submitted that reference to the motive is also not relevant and he submitted that in any case it can be considered at the trial.

Learned Counsel Mr. Shethna in rejoinder submitted that the applicant is aged about 25 years only and he has been in jail since January 2010 and therefore the present application may be allowed.

In view of rival submissions it is required to be considered whether the present application can be entertained or not.

It is well-accepted that the court is not required to appreciate and scrutinize the evidence in detail at this stage. However, for considering the prima facie case and the bail application, aspects like nature/gravity of offence, the manner in which it is alleged to have been committed, the role attributed, weapon used, etc. are relevant. Therefore, without any further elaboration, it is evident that the alleged offence is u/s 302 of IPC which is of a grave nature. Much emphasis made by learned Counsel Mr. Shethna with regard to the role or involvement and also further submission that there is no evidence as to the injury attributed to the applicant and also motive is misconceived.

The court is not required to appreciate and discuss the evidence while deciding the bail appreciation at this stage and therefore it is desirable not to discuss the same at length. The fact remains that a prima facie case suggesting involvement of the applicant like presence as well as role attributing knife blow is made out which is corroborated by the FSL report also. The submission that there is no evidence with regard to the motive or that it could be a case falling u/s 304 Part-II and not for offence u/s 302 of IPC is a matter of appreciation of evidence at the trial which cannot be considered at this stage. Moreover, if these aspects are required to be gone into, it would be considering the appreciation of evidence at this stage without proper evidence having been recorded. Therefore also the court cannot come to any conclusion at this stage pending the trial. The aspect regarding the prima facie involvement is clearly established and when there are no material change in the fact-situation or any additional ground made out, the present application cannot be entertained.

It is well-accepted that while considering the successive bail application, the court is required to consider the material change in the fact situation or additional ground and not mere cosmetic change as observed by the Hon''ble Apex Court in a judgment in the case of State of Maharashtra Vs. Captain Buddhikota Subha Rao, In the circumstances, having regard to the settled position of law regarding successive bail application, particularly the observations made by the Hon''ble Apex Court in its judgment in the case of Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, the court is not inclined to entertain the present application.

The present application therefore deserves to be rejected and accordingly stands rejected. Rule is discharged.