Bharatsinh Vaktusinh Makwana vs State Of Gujarat

B.N. Karia, J

The appellant preferred one Criminal Misc. Application No. 524 of 2019 before the Court of learned Special Judge (Atrocity ) & 2nd Additional Sessions Judge, Sabarkantha District, Himmatnagar u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered vide I-C.R. No. 39 of 2019 with Himmatnagar Rural Police Station, District Sabarkantha for the offence punishable u/s. 34, 302, 201, 120(B), 114 of IPC and u/s. 3(2)(5A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein, the learned Special Judge (Atrocity) & 2nd Additional Sessions Judge, Sabarkantha District, Himmatnagar rejected the said application on 13th September, 2019.

Feeling aggrieved by the said order, the appellant preferred present appeal u/s 14A of the Atrocities Act.

Heard Mr.Ashish Dagli, learned advocate for the appellant; Mr.Hardik Raval, ld. advocate for the respondent No.2 and Ms. M.H.Bhatt, learned APP for the respondent­ State.

Learned advocate for the appellant has submitted that the appellant has been falsely implicated and he has not committed any offence as alleged in the complaint. That, the appellant is not named in the FIR. That, the appellant is not associated with other accused in the present business. That, the appellant has no motive so far as deceased is concerned. That, in fact the appellant also came to know that the deceased Jayantibhai was a hard core criminal and was involved in so many offences of theft. That, so called CCTV footage, which was identified through other accused, is not admissible, and therefore, such evidence could not have been relied upon. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by learned Special Judge (Atrocity) and 2nd Additional Sessions Judge, Sabarkantha District, Himmatnagar and release the appellant on bail.

Learned APP for the respondent ­State as well as Mr. Hardik Raval, learned advocate for the respondent No.2 have strongly objected the arguments advanced by learned advocate for the appellant and submitted that active role was played by the present appellant in committing the murder of the deceased. That, sufficient material is available with the prosecution, collected during the course of investigation which prima facie established the involvement of the present appellant in the offence. That, there are different reports obtained by the Investigating Agency from the FSL which also indicates the presence of present appellant and could be identified at the place of offence. Learned APP has referred the statements of prosecution witnesses and argued that from the statements of prosecution witnesses also involvement of the present appellant is established. That, serious offence is committed by the present appellant and therefore, no lenient view should be taken by this Court. Hence, it was requested by learned APP for the respondent­State as well as learned advocate for the respondent No.2 to dismiss the present appeal.

Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent­State and police papers produced on record, it appears from the complaint that there were three accused named in the complaint. Name of the present appellant was not disclosed in the complaint nor any participation in the offfence is revealed. Subsequently, the name of the present appellant was disclosed during the course of investigation by the Investigating Agency. Prosecution has relied upon mainly on three different FSL reports i.e. 13th September, 2019, 20th December, 2019 as well as 6th January, 2020. In the FSL report dated 6th January, 2020, it is stated that a male person is seen in the CCTV video footages present in the Hard Disk Exh. HS of the DVR Exh­S were not clearly visible, opinion regarding presence of the person Exh.2 i.e. Bharatsinh Vaktusinh Makwana­ present appellant could not be offered. From FSL report, the presence of present appellant at the scene of offence was not secured. From the police papers, it is noticed that the name of present appellant was revealed during the course of investigation by the Investigating Agency. Considering the participation of the present appellant as per prosecution case and FSL report, presence of present appellant was doubtful at the place of incident at the time of committing offence. Thus, this Court is of the view that present appeal deserves consideration and judicial discretion is required to be exercised in favour of the present appellant.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 13.9.2019 passed by the learned Special Judge (Atrocity) & 2nd Additional Sessions Judge, Sabarkantha District, Himmatnagar in Criminal Misc. Application No. 524 of 2019 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/­ with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant 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 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 this Court;

The authorities will release the appellant 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. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged.

Direct service is permitted.