Jayesh Gaurishankar Dave vs State Of Gujarat

Gita Gopi, J

This application has been filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with the First Information Report being C.R. No.11213022220317 of 2022 registered with Jetpur City Police Station, Rajkot Rural for the offences punishable under Sections 302, 201, 449 and 34 of the Indian Penal Code.

Learned Senior Counsel for the applicant Mr. N.D. Nanavaty Advocate submitted that only on the premise that the accused were attempting to escape from Gondal, the investigating officer has arrested them in the case where the prosecution has tried to link them with a CCTV Footage and in the FSL Report, no conclusion could be drawn, hence, no identification could be made of the person alleged to be driving the car as also of the occupants. It is submitted by learned Senior Counsel Mr. N.D. Nanavaty that prosecution alleges that the accused had gone to Khakhadiya Mahadev Temple in a Swift Four Wheeler Car and one of the co-accused Darshak alias Darshanbhai Ratilal Degama was asked to keep watch and rest of the three accused entered the temple and had demanded money from the deceased – Rudranandgiri Bapu and when he retort to file a case before the police, it is alleged that the accused got excited and after holding the neck of the deceased, pinned him down and with the help of the rope, strangulated him and tied his hands and legs with a rope and the wire of the mobile charger. It is submitted that the applicant herein is alleged to have put the dead body in the dikki of the car and drove it near the pool at Bordi Santhiala and after parking the car, the four accused removed the dead body and threw it into the canal. It is submitted that the prosecution has not brought any evidence of the dead body being in the dikki of the car nor the CCTV Footage gives any clarity of all the accused traveling together nor is there any evidence recorded which connects the present accused with the alleged offence. It is also submitted that nothing is on record to show any body particles being present on the mobile charger/wire or on the rope. It is also submitted that the deceased himself is an accused under Section 376 of the Indian Penal Code for which a First Information Report has been registered and for that, the statement of the victim witness has been recorded and wherein allegations of some money transactions are also leveled. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.

Learned Additional Public Prosecutor submitted that through the CCTV Footage the accused were found to be traveling together and the movement was found suspicious so they were arrested. After that, the statement of the accused was recorded. It is further submitted that though the confessional statement cannot be taken into consideration which would connect the accused since it is on the basis of this statement, investigation proceeded and found evidence against accused. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.

Heard learned Advocates on both the sides and perused the material on record. The CCTV Footage and the FSL Report does not express any opinion about the identity of the accused who are alleged to be traveling in the car. Further nothing with regard to the investigation any chemical analysis has been brought on record as also evidence to suggest the presence with regard to the human remains / particles in the car. In addition, there no finger prints or chance prints from the temple to suggest the entry of the accused. Considering the facts and circumstances of the case, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the First Information Report being C.R. No.11213022220317 of 2022 registered with Jetpur City Police Station, Rajkot Rural 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 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;

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.

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.