DILIPSINH BACHUBHA RANA Vs. STATE OF GUJARAT
LAWS(GJH)-2013-9-270
HIGH COURT OF GUJARAT
Decided on September 05,2013

Dilipsinh Bachubha Rana Appellant
VERSUS
STATE OF GUJARAT Respondents


Referred Judgements :-

SIDDHARAM SATLINGAPPA MHETRE VS. STATE OF MAHARASHTRA [REFERRED TO]


JUDGEMENT

- (1.)BY way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant original accused has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR being I -C.R.No. 44 of 2012 registered with Dharangadhra City Police Station, District: Surendranagar for the offences punishable under Sections 302,307,367,120 -B and 114 of the Indian Penal Code, Section 25(1 -B)A, 27 of the Arms Act and Section 135 of the Bombay Police Act.
(2.)THE brief facts which emerge from the record are as under:
2.1 One Pareshbhai s/o Bhagwanjibhai Barot lodged an FIR on 29.09.2012 with Dhrangadhra City Police Station alleging that when he was travelling on motor cycle along with Popatbhai Devabhai and were going towards railway station in Dhrangadhra, Popatbhai was driving and when they reached Shaktigate Police Chawki suddenly one white coloured Indica Car came from the opposite side in full speed and dashed deliberately with the motorcycle, pursuant to which, both of them fell down. From the said Car, the present applicant along with other persons namely, Mavsang Meru, Indrasinh and Paresh Hamir Rabari get down from the said Car. Indrasinh and present applicant took out Tamancha and opened fire. Paresh Hamir Rabari used dhariya and inflicted blows on Popatbhai. Mavsang Meru took out Tamancha and opened fire pursuant to which, he sustained injury on his right hand. Paresh Rabari had also inflicted dhariya blow on his head. It was further stated in the FIR that pursuant to attack by all those persons, Popatbhai was in pool of blood. He and the complainant shouted. Pursuant to their shouting, number of persons gathered and two persons Govinbhai Nagjibhai and Chhalabhai Mangabhai Bharwad came to the rescue. Since the deceased Popatbhai was lying in the ground all four persons took him in Car and started travelling towards Village Charmaniya. The complainant along with Chhalabhai Mangabhai Bharwad who was present at that place followed them on their motorcycle. The accused persons threw Popatbhai on the ground of Charmaliya village where the Ambulance 108 reached and immediately he was transferred to Surendranagar Hospital where Popatbhai succumbed to the injuries. The complainant also averred in the FIR that the accused persons wanted to establish their power in the area and therefore, they have attacked on Popatbhai.

2.2 Having come to the know about the lodging of FIR and apprehended his arrest, the present applicant preferred application under Section 438 of the Code of Criminal Procedure before the learned Sessions Judge of Dhrangadhra which came to be rejected on 29.11.2012. The applicant, therefore, preferred an application under Section 438 of the Code of Criminal Procedure being Criminal Misc. Application No. 17200 of 2012 before this Court. This Court ( Coram: Anant S. Dave, J) passed an oral order by quashing and setting aside the order dated 29.11.2012 passed by the learned In -Charge Additional Sessions Judge, Dhrangadhra, remanded the matter for considering the case afresh on merits since the order was not a reasoned one. Relevant para 4 of the said order dated 05.12.2012 is reproduced hereinbelow: 1....... 2...... 3..... 4. Considering the vagueness and non -application of mind to the material on record including that of police papers and no discussion of prima facie in nature, the learned Judge has abdicated his function and duty as a First Court to consider and appreciate an application for anticipatory bail. The order dated 29.11.2012 is, therefore, quashed and set aside with a direction to learned In -charge Additional Sessions Judge, Dhrangadhra to consider the application for anticipatory bail of the applicant herein under Section 438 of the Code afresh on merit and after considering relevant material on record and submissions that may be made by learned advocate in this behalf and if the learned Judge is not well conversant with the language in which he has to dictate the judgement, it will be open for him to write the judgement in Gujarati/vernacular.

2.3 As per the direction of the this Court, the learned Sessions Judge restored the matter and after hearing the learned advocates afresh passed a reasoned order on 12.12.2012 and the application filed by the applicant for anticipatory bail came to be dismissed. Thereafter, the present applicant has preferred the present application under Section 438 of the Code of Criminal Procedure. The present petition came up for hearing for the first time before this Court on 11.01.2013. This Court ( Coram: Anant S. Dave, J.) passed the following order:

1. Heard learned Senior Counsel Mr. B.B. Naik with learned Counsel Mr. Devang Vyas for the applicant, learned Additional Public Prosecutor Mr. J.K. Shah for the respondent State and learned Counsel Mr. Ashish M. Dagli for the complainant. During the pendency of this application, the order dated 24.12.2012 passed in Special Criminal Application No.3492/2012 is brought to the notice of this Court. Learned Additional Public Prosecutor Mr. J.K. Shah would like to take instructions with regard to the course of the investigation to be undertaken by the competent officer.

Considering overall facts and circumstances of the case, meanwhile, at this stage, subject to availability of the applicant hence forth before the investigating officer, to carry out fair and transparent investigation, by way of ad -interim relief, the respondents herein are restrained from arresting the applicant till 31st January, 2013. The matter be listed on 31st January, 2013.

(3.)SUBSEQUENT to the order passed by this Court, affidavits have been filed by original complainant, present applicant as well as by one Shri J.M. Bharvad, Police Inspector of Jetpur Police Station, District: Rajkot. The interim protection granted earlier vide order dated 11.01.2013 is continued till today.
Mr. BB Naik, learned Senior Advocate with Mr. Devang Vyas, learned Advocate appearing for the applicant has argued that the case is concocted one and there is no material involving the present accused against whom it has been alleged that he has used Tamancha in the incident. He further submitted that the deceased Popatbhai had not sustained any bullet injuries and has not died due to said injury. He submitted that the investigating agency has not examined any independent witness and only persons from the caste of the deceased have been examined as witnesses and the prosecution has tried to create false evidence against the present applicant. He would further submit that the applicant was not in the city at the time of the incident. He further submitted that the deceased himself was Gangleader and 12 criminal cases were lodged against him and, therefore, the deceased Popatbhai has been murdered by some unknown persons and his body was thrown in the village Charmaniya. The present applicant along with other accused have been arraigned as accused due to past enmity. He would further submit that there is contradiction in the FIR and affidavit filed by the investigating agency before the trial Court. He submitted that in the FIR, the complainant had stated that accused had come in Indica Car while the police has discovered a Maruti Car. This is a material contradiction in this case. He further submitted that ownership of that Car (Maruti) which is discovered by the police from the place of incident is not established by the police. He would further submit that another contradiction in the FIR and the affidavit is that the complainant has stated that all three persons were having Tamanchas while only one cartridge is found from the place of incident. Third contradiction, he brought to the notice of this Court is that the allegations in the FIR with regard to role played by the applicant is that he had used Tamancha wherein cartridge is found from the place of offence. If the allegations are prima facie to be believed, the pallets wound have been found out from the place of incident instead of cartridge and therefore, the say of the complainant himself and other interested witness should not be believed.



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.