Amitbhai Amarsinhbhai @ Gafarbhai Rathod vs State Of Gujarat

Divyesh A. Joshi, J

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R. No. 11208002220644 of 2022 registered with the Ajidem Police Station, District Rajkot for the offence punishable under Sections 302, 201, 114 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act.

Learned advocate Ms. Kachara appearing on behalf of the applicant has submitted that the so called incident has occurred on 02.09.2022 and FIR was registered on 03.09.2022 and in connection with the same, the applicant was arrested on 03.09.2022 and since then, he is in judicial custody. It is also submitted that the investigation is already completed and the present application is filed after submission of the charge-sheet. Learned advocate further submits that FIR was registered against unknown persons and thereafter during the course of investigation, the name and specific role of the present has come on surface. It is also submitted that entire case of the prosecution hinges upon circumstantial evidence. It is also submitted that the trial has already been commenced and the witnesses are to be examined and the complainant who is real sister of the applicant, has not supported to the case of the prosecution and she has been declared as hostile witness. It is also submitted that co-accused Anilbhail has already been considered by the concerned trial court. Learned advocate submitted that considering the role attributed to the present applicant as well as principle of law of parity, the present applicant may be enlarged on regular bail by imposing suitable terms and conditions.

Learned APP appearing on behalf of the respondent-State has opposed the present bail application. It is submitted that the role of the present applicant is clearly spelt out from the body of the compilation of the charge sheet papers. She further submitted that entire case hinges upon circumstantial evidence and during the course of investigation, the concerned I.O. has collected all the documents which clearly goes on to show the involvement of the present applicant in the aforesaid commission of crime. It is also submitted that during the course of investigation, the clothes, which were worn by the present applicant at the time of commission of crime, were recovered at the instance of the present applicant and blood sustains were found and the said clothes were sent to the FSL and from which, it was found out that blood found on clothe the applicant is tallied with the blood of the deceased. It is also submitted that considering the role attributed by the present applicant, the present application may not be considered.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. I have also considered the reasoning given by the concerned court while rejecting the bail application and the affidavit filed by the IO opposing the said application.

It is the settled position of the law that, at this juncture detailed discussion of evidence and canvassing of the allegations contained in FIR as well as affidavit of the concerned Investigating Officer or the merits of the case as well, is not necessary and should be avoided.

It is found out from the record that the applicant – accused is involved in a serious offence of murder of innocent person. It is true that FIR was registered against unknown persons but during the course of investigation, specific name and role of the applicant is found out and, hence he was arrested and then, chargesheeted. During the course of investigation, the prosecution has proved motive behind the commission of offence because the complainant married with her distant uncle, which was not liked by the accused and, hence keeping grudge about the said fact, the accused have mercilessly killed the deceased. Further by leading cogent and convincing documents during the course of investigation, the prosecution has also proved the chain of circumstance, which connected the applicant – accused with the commission of crime. Further FSL report received by the IO suggest that the blood found on the clothe of the applicant is tallied with the blood of the deceased. I have also considered the investigation papers including the statements of the witnesses, which connect the applicant with the commission of crime. Thus considering the nature of offence, role played by the accused and involvement of the applicant – accused in the commission of crime, the present application deserves to be rejected.

At this stage, I would like to put reliance upon the decision of the Hon’ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70, wherein, the Apex Court has laid down that, while considering an application for regular bail, the Courts shall have to take into consideration, the following aspects,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the court in support of the charge;

The Hon’ble Apex Court, further, observed at Paragraphs- 10 and 16 thus;

“10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.

We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.”

The Hon’ble Apex Court has in a decision in case of Prasanta Kumar Sarkar Vs. Ashis Chatterjee & Anr., reported in (2010) 14 SCC 496 has made observation as under,

"9. It is well settled that, among other circumstances, the factors to be borne in mind while considering 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 accusation; (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 influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

The Hon’ble Apex Court has in a decision in case of Mahipal vs. Rajesh Kumar @ Polia & Anr., reported in (2020) 2 SCC 118, it has been held that:-

"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused."

From the aforesaid discussion, it appears that as per the prosecution case, the applicant is involved in the serious offence and taking into consideration the complicity of the applicant, there being apprehension of the witnesses being influenced, severity of punishment as drawn from the nature and gravity of the accusations, after taking due consideration of the submissions of the parties, and the settled case law in various judgments passed by the Hon'ble Apex Court and various Hon'ble High Courts, without expressing any opinion on the merits of the case, I am of the opinion that it is not a fit case for bail.

Accordingly, the present application is rejected.

Needless to say that observations made herein above are confined to decision of the present bail application.