Milanbhai Virambhai Odedara 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.11185001210553 of 2021 registered with Bhanvad Police Station, Devbhoomi Dwarka for the offences punishable under Sections 302, 120(B), 447, 506(2), 113 and 114 of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act.

Learned Advocate for the applicant submitted that the only witness who claims to be an eye witnesss, ie. Radhu alias Raghubhai Shambhubhai states that the person who had earlier come, had come with a covered face. It is submitted that his conduct itself becomes very doubtful since he had left the place and till morning, he had not informed anyone about the incident. It is also submitted that when the dead body was found, the right hand was eaten away by some animal. No test identification parade was conducted. It is further submitted that the co-accused – Manshukhlal Ravjibhai Javiya has been granted bail vide order dated 25.11.2021 passed in Criminal Miscellaneous Application No.18234/2021. It is submitted that the present applicant did not have any enmity or any grudge with the deceased. The only allegations against the present applicant are of performing a recee to enquire about the presence of the deceased, at his farm/field. It is submitted that the present applicant had a conversation with the co-accused and on that basis, the applicant has been made an accused and in the discovery panchnama, the applicant is attributed with a stick. It is therefore, that the present application may be allowed and the applicant herein may be released on regular bail.

Learned Additional Public Prosecutor submitted that a dog squad was used to find out the presence of the accused. Further, the CDR details and the discovery in the hands of the co-accused, attribute the present applicant to be present at the place of offence. 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. It appears that the witnesses are alleged to be four persons whereas the charge-sheet is filed against six persons. No test identification parade was conducted. Even if recovery panchnama is to be believed, then also the present applicant is attributed with one wooden stick. What type of injury was caused by the present applicant also does not surface on record. Further the witness who is stated to be an eyewitness to the incident also does not have a clear identity of the accused nor does the investigation confirm the identity by way of a test identification parade. Considering the above, 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.11185001210553 of 2021 registered with Bhanvad Police Station, Devbhoomi Dwarka 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.