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Siddhrajsinh Bhagubha Vaghela v. State Of Gujarat

Gujarat High Court

Oct 22, 2020

Judgment

Subsequent
References

CaseIQ

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Court Opinion Summary

Factual and Procedural Background

The applicant moved this Court under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail after filing of the charge-sheet in connection with FIR I-C.R. No. 11993005200314 of 2020 dated 9 May 2020 registered at Adesar Police Station, Bhachau, District Kutch. The charge-sheet followed investigation into an incident dated 9 May 2020 in which five persons were killed. The applicant is accused of multiple offences under the Indian Penal Code (including Section 302 and other sections listed in the charge-sheet), certain provisions of the Arms Act and Section 135 of the Gujarat Police Act. The charge-sheet has been filed and the applicant has been in custody since 9 May 2020.

Legal Issues Presented

Whether the applicant should be enlarged on regular bail under Section 439 CrPC after filing of the charge-sheet for the offences specified in the FIR dated 9 May 2020.
Whether the materials on record (including variations in statements of the complainant and witness, absence of blood marks on clothes and recovered stick, and other investigative aspects) create sufficient doubt at the bail stage to justify release.
Whether antecedents of the applicant, allegations of conspiracy and the gravity of the offences (including alleged murder of five persons) weigh against granting bail.

Arguments of the Parties

Applicant's Arguments (Advocate: Mr. Yogesh Lakhani et al.)

On perusal of the complaint dated 9 May 2020 and the complainant's later statement dated 3 June 2020 (annexed to the charge-sheet), a materially different account emerges regarding the incident of 9 May 2020.
Although the complainant's initial statement of 9 May 2020 names the applicant and mentions he had a stick, the subsequent statement of 3 June 2020 records the applicant's presence but does not attribute any overt act by the applicant causing injury to the deceased.
The statement of another witness (Mr. Devrajbhai) is verbatim the same as the later statement of the complainant, indicating a changed version.
The charge-sheet contains observations (at referenced pages) that no blood mark was found on the applicant's clothes or on the recovered stick.
A representation dated 13 May 2020 made by the applicant's brother alleged the applicant was not at the scene on 9 May 2020 but at village Rapar; the police did not pursue further inquiry such as collecting CCTV footage or call detail records to verify the applicant's location.
A prior scuffle between the two sides on 6 May 2020 (stated by an unarmed police constable) and a prior case against the applicant three years earlier suggest the applicant may have been falsely implicated due to enmity.
The cross-complaint filed by accused persons does not mention the applicant's name as being present at the scene.
Given these factors and the applicant's age (about 22 years), he should be enlarged on bail.

State/Prosecution's Arguments (Additional Public Prosecutor: Ms. C.M. Shah)

This is a case where five persons were murdered; the applicant is alleged to have participated in a conspiracy with other accused persons to cause injury to the complainant side arising from prior enmity.
The applicant is charged under multiple sections of the IPC (including Section 302) and under the Arms Act and the Gujarat Police Act.
The applicant's name appears in the FIR and his role is specified in the FIR.
The applicant has antecedents, with three other offences registered against him in 2017 and 2019, which weigh against granting bail.
On account of allegations of conspiracy under Section 120B IPC and the gravity of offences, the applicant should not be enlarged on bail.

Original Complainant's Arguments (Advocate: Mr. K.R. Dave)

Adopted the arguments of the Additional Public Prosecutor.
Submitted that the applicant's antecedents and the likelihood of breach of peace argue against bail.
Asserted that the complainant's complaint dated 9 May 2020 and the additional statement recorded under Section 161 on 3 June 2020 refer to the applicant's presence at the scene; thus, there is no contradiction in the statements and the applicant's presence is corroborated by the prosecution's investigation as reflected in the charge-sheet.
When allegations of conspiracy exist, the applicant should not be enlarged on bail.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40	The opinion states that the Court "has taken into consideration the law laid down by the Hon'ble Apex Court" in this case. The specific rule or principle from the precedent is not elaborated in the provided text.	The Court considered the law laid down in this Apex Court decision while deciding the bail application; no further detail about how specific principles were applied is set out in the opinion.

Court's Reasoning and Analysis

The Court examined the material on record and the rival submissions. It noted the following analytical points as recorded in the opinion:

The applicant's name is shown in the FIR and charged with multiple serious offences. However, on perusal of the charge-sheet papers the Court observed that the complainant's subsequent statement dated 3 June 2020 (recorded 25 days after the incident) omits the "overt tact" attributed in the FIR. While the complainant continued to state that the applicant was present, no active role was attributed to him in the later statement.
The complainant's additional statement of 3 June 2020 effectively substituted the earlier chronology and narrated different details compared to the complaint dated 9 May 2020. The Court limited itself to prima facie observations at the bail stage and declined to delve into the detailed facts that could affect the trial.
The Court observed prima facie that the applicant may have been involved due to prior proceedings and enmity with the complainant side, but there were inconsistencies and investigative gaps (such as absence of blood marks on clothes/stick and the asserted failure to pursue CCTV/CDR verification) relied upon by the applicant.
The Court took into account practical considerations: the applicant had been in custody since 9 May 2020; investigation was complete and the charge-sheet filed; and the trial was likely to take time because over 110 witnesses remained to be examined.
The Court noted the law of the Apex Court in Sanjay Chandra (without detailing the specific principle) and, balancing the nature and gravity of allegations against the evidentiary material and procedural posture, concluded that it was appropriate to exercise discretion in favor of granting regular bail in this case.
The Court expressly refrained from discussing evidence in detail so as not to prejudice the trial; it also cautioned the trial court not to be influenced by the prima facie observations made in the order.

Holding and Implications

Holding: The application is allowed and the applicant is ordered to be released on regular bail.

Direct consequences and conditions imposed by the Court (as recorded in the opinion):

The applicant to execute a personal bond of Rs. 10,000 (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court.
Conditions attached to bail:
1. Not to take undue advantage of liberty or misuse liberty;
2. Not act in a manner injurious to the interest of the prosecution;
3. Surrender passport, if any, to the lower court within a week;
4. Not leave the State of Gujarat without prior permission of the concerned trial court till the trial is over;
5. Mark presence before the concerned Police Station between 1st to 10th day of every English calendar month till the trial is over;
6. Furnish present address of residence to the Investigating Officer and to the Court at the time of execution of the bond and not change residence without prior permission of the concerned trial court;
7. Not enter the revenue limits of District Kutch for six months except for marking presence before the concerned police station and to attend the trial.
The release is conditional upon the applicant not being required in connection with any other offence at the time of release; breach of any condition permits the Sessions Judge to issue warrant or take appropriate action.
The bail bond is to be executed before the lower Court having jurisdiction to try the case; that Court may delete, modify or relax any conditions in accordance with law.
The Trial Court is directed not to be influenced by the prima facie observations recorded by this Court in the present order.
The Registry is directed to communicate this order to the concerned Court/authority by Fax or E-mail; direct service is permitted.

Broader precedent effect: The Court explicitly stated that this order is passed considering the facts of the applicant only and "shall not be considered as precedent for any other person" accused in the complaint on grounds of parity. No new precedent is stated to have been laid down.

Show all summary ...

Bhargav D. Karia, J.:— Heard learned Senior Advocate Mr. Yogesh Lakhani assisted by learned advocates Mr. Neel P. Lakhani and Mr. Dhruv P. Thakkar for the applicant, learned Additional Public Prosecutor Ms. C.M. Shah for the respondent-State and learned advocate Mr. K.R. Dave for the original complainant through video conference.

2. By this application under Section 439 of the Code of Criminal Procedure, 1973 the applicant has prayed for regular bail after filing of the charge-sheet in connection with the offence punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Sections 25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, with regard to the F.I.R. being I-C.R. No. 11993005200314 of 2020 dated 9 May 2020 registered with Adesar Police Station, Bhachau, District Kutch.

3. Learned Senior Advocate Mr. Yogesh Lakhani assisted by learned advocate Mr. Neel P. Lakhani submitted that on perusal of the complaint dated 9 May 2020 and the statement of the complainant on 3 June 2020 annexed with the charge-sheet papers. a total different story is emerging with regard to the incident which had taken place on 9 May 2020.

4. Learned senior advocate Mr. Lakhani invited attention of the Court that in the statement of 9 May 2020 of complainant-Rameshbhai, the name of the applicant is appearing and he is shown present with the other accused persons and the applicant is alleged to have stick in his hand. Mr. Lakhani thereafter, referred to the statement of the complainant Rameshbhai dated 3 June 2020, where the presence of the applicant was shown but the complainant has not stated any role of the applicant by overt tact causing any injury to any of the deceased persons. Mr. Lakhani also referred to the statement of another witness namely Mr. Devrajbhai, which is verbatim same and according to him as the complainant and the witness have changed the version of the facts narrated in the statement dated 9 May, 2020, subsequently in additional statement dated 03.06.2020, the petitioner, who is aged about 22 years should be enlarged on bail.

5. Mr. Lakhani thereafter referred to the charge-sheet at page nos. 30 and 33 of the application wherein it is stated that there is no blood mark was found on the clothes, as well as, stick, which was recovered from the applicant.

6. Mr. Lakhani also submitted that a representation was made on 13 May, 2020 before the police by the brother of the applicant that the applicant was not present at the scene of offence on 9 May, 2020 and he was at village Rapar along with the brother of the applicant. It was submitted that no further inquiry or investigation is made by the police with regard to the collection of C.C.T.V. footage or retrieving the call details of the applicant to find-out his location on the date of incident.

7. Mr. Lakhani further referred to the statement dated 02.06.2020 of one Mr. Balbhadra Bhagwatsinh Zala, Unarmed Police Constable dated 2 June 2020, wherein he has stated that there was a scuffle between both the two sides i.e. Koli and Rajput on 6 May 2020 i.e. three days before the alleged incident and it was therefore, pointed-out that in view of such scuffle, the alleged incident had taken place and as there was a case registered against the applicant three years back, the name of the applicant is falsely involved for the alleged offences though he was not present at the place of incident.

8. Mr. Lakhani pointed-out from the cross-complaint filed on behalf of the accused persons to point-out that the story narrated in the cross complaint the name of the applicant is not mentioned showing his presence at the place of incident.

9. On the other hand, learned APP Ms. C.M. Shah submitted that it is a case of murder of five persons and provision of Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C. are alleged against the applicant and in addition to the offence punishable under Section 25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, are also alleged against the applicant. It was therefore, pointed-out that there was a conspiracy of the applicant with the other accused persons to cause injury to the complainant side for previous enemity where five persons lost their lives due to the injuries caused by accused persons including the applicant and therefore, the applicant should not be enlarged on bail as he was part of the conspiracy.

10. Learned APP submitted that the name of the applicant appears in the FIR, as well as, his role is also specified in the FIR.

11. Learned APP Mr. Shah further submitted that there are antecedents against the applicant as there are three more offences registered against him in the year 2017 and 2019.

12. Therefore, it was prayed that taking into consideration, overall facts and circumstances of the case, where five persons have lost their life, the applicant should not be enlarged on bail.

13. Learned advocate Mr. Kirtidev R. Dave, who was permitted to appear on behalf of the original complainant, adopted the arguments of learned APP and further submitted that the applicant is having antecedents and therefore, if he is enlarged on bail, there is a likelihood of breach of peace. He further submitted that there is an assertion by the complainant in the complaint dated 9 May 2020 that the applicant was present at the place of incident and further, the same was reiterated in the additional statement recorded under Section 161 of the Code on 3 June 2020, where the presence of the applicant was very much referred by the complainant and therefore, there is no contradiction in both the statements and as the applicant was present at the scene of offence as stated in the statement of complainant, which is also corroborated by the further investigation made by the prosecution as stated in the charge-sheet, at this stage, it cannot be said that the applicant was not present at the scene of offence and when there are allegations of conspiracy under Section 120B of the IPC, the applicant should not be enlarged on bail.

14. Having considered the rival submissions and having gone through the materials on record, it appears that though the name of the applicant is shown in the FIR for the alleged offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Section 25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, for the incident which took place on 9 May 2020, on perusal of the charge-sheet papers, it appears that the complainant in the subsequent statement dated 3 June 2020, which has been recorded after 25 days from the date of incident, the overt tact which was attributed in the FIR, is missing. Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3 June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9 May 2020 is in effect substituted by the complainant in the additional statement dated 3 June 2020 by narrating altogether different details. At this juncture, this Court is not going into the details of the incident as it may affect the trial at the later point of time. Suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side.

15. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

16. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

17. This Court has considered following aspects:

(a) The applicant is in jail since 9 May 2020.

(b) Investigation is over and charge-sheet is filed.

18. Looking to the overall facts and circumstances of the present case, I am inclined to consider the case of the applicant.

19. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40.

20. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being I-C.R. No. 11993005200314 of 2020 dated 9 May 2020 registered with Adesar Police Station, Bhachau, District Kutch on executing a personal bond of Rs. 10,000/- (Rupees Ten 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 the State of Gujarat without prior permission of the concerned trial court till the trial is over;

[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month till the trial is over;

[f] 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;

[g] not enter the revenue limits of District Kutch for the period of six months except marking his presence before the concerned police station and to attend the trial.

21. This order is passed considering the facts of the case of the applicant only and the same shall not be considered as precedent for any other person who is accused in the complaint on ground of parity.

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

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

24. Rule is made absolute to the aforesaid extent.

25. The Registry is directed to communicate this order to the concerned Court/authority by Fax or E-mail. Direct service is permitted.