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CR.MA/2450/2012 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No.2450 of 2012
=========================================
YUVRAJSINH
MAHENDRA SINH VAGHELA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
========================================= Appearance:
MR
ND NANAVATI, SR. ADVOCATE with MR CHETAN B RAVAL for Applicant(s): 1,
MS
ARCHANA RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Respondent(s): 1,
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
Date
: 11/05/2012
ORAL
ORDER
1. By
this application under section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicant has prayed to be enlarged on regular bail in connection with I-C.R. No.374/2011 registered before Amraiwadi Police Station which was subsequently transferred to the D.C.B. Crime, Ahmedabad for the offences punishable under sections 302, 324, 143, 144, 147, 148, 149, 120(B) and 34 of the Indian Penal Code and section 135(1) of the Bombay Police Act.
2. Mr.
N.D. Nanavati, learned senior advocate appearing on behalf of the applicant invited attention to the first information report to point out that the accused No.2 is one Divyaraj alias Montu who has been referred to as the nephew of the accused No.1 - Dadubha Jujarsinh. It was submitted that the applicant herein is named Yuvrajsinh Mahendrasinh Vaghela and though he is related to Dadubha Jujarsinh, he is not his nephew. It was submitted that in the statement of other witnesses also, the accused No.2 is referred to as Divyaraj alias Montu and not Yuvraj. Under the circumstances, it is apparent that there is no typographical mistake and the witnesses had specifically named one Divyaraj alias Montu as the accused No.2. It was submitted that from the statements recorded by the police, there is nothing to indicate that the present applicant namely, Yuvrajsinh is the accused No.2 i.e. Divyaraj alias Montu. It was further pointed out that the only statement wherein the name of the applicant finds reference is in the statement of Hitesh @ Hitendra recorded on 4th September, 2011 which does not from part of the chargesheet papers. It was submitted that the very same statement had been placed reliance upon by the Investigating Officer for arraigning four other persons as accused, however, this court had enlarged the said persons on bail vide order dated 14th February, 2012 passed in Criminal Miscellaneous Application No.163/2012 and other cognate matters wherein it has been observed that copy of the statement of eye-witness Hiteshbhai recorded on 4th September giving different story subsequently was not produced with chargesheet papers and that in the affidavit filed by the Investigating Officer before the court below when the bail applications were preferred by the applicants therein, no reference was made as regards statement of Hitesh having been recorded by the Investigating Officer. It was noted that the name of the applicants therein had not been given either by the complainant or the witness Jitendrabhai. It was submitted that in the present case, the name of the applicant herein is disclosed only in the above referred statement of Hiteshbhai recorded on 4th September, 2011 in respect of which this court had made the above referred observations. It was submitted that under the circumstances, it nowhere appears from the chargesheet papers that the identity of the accused No.2 has been identified with that of the applicant herein and that there is no statement recorded anywhere so as to indicate that the applicant Yuvrajsinh is the Divyaraj alias Montu whose name finds mention in the first information report. It was submitted that under the circumstances, the applicant herein has been wrongly involved in the offence in question and as such, this court may exercise discretion and enlarge him on bail.
3. Opposing
the application, Ms. Archana Raval, learned Additional Public Prosecutor invited attention to the statement dated 4th September, 2011 of Hitesh @ Hitendra Bachubhai Gadhvi wherein, the applicant had been referred to by name as the brother of Dadubha Jujarsinh. It was submitted that the aforesaid statement had subsequently been tendered alongwith a report and now forms part of the chargesheet papers and as such, reliance can be placed upon the same. It was submitted that considering the nature of the offence alleged as well as the fact that two eye-witnesses have stated that the applicant was present during the commission of the offence in question and had played an active role, no case is made out for grant of the relief prayed for and that the application deserves to be rejected.
4. This
court has considered the rival submissions advanced by the learned advocates for the respective parties. A perusal of the documents annexed alongwith the application shows that the applicant herein is a student of 3rd year B.Com and is 20 years of age. In the first information report, the name of the accused No.2 is Divyraj alias Montu. The statements of the witnesses recorded by the police also makes reference to Divyraj alias Montu, nephew of Dadubha Jujarsinh. In none of the statements, does the name of the applicant Yuvrajsinh find any mention. The only statement which connects the applicant herein with the offence in question is a statement dated 4th September, 2011 of Hitesh @ Hitendra Bachubhai Gadhvi. As can be seen from the order dated 14th February, 2012 passed by this court in Criminal Miscellaneous Application No.163/2012 wherein, the court in relation to the above referred statement of Hiteshbhai has observed that the copy of the statement of eye-witness Hiteshbhai recorded on 4th September giving different story subsequently was not produced with chargesheet papers; that in the affidavit filed by the Investigating Officer before the court below when bail applications were preferred by the said applicants, no reference was made as regards statement of Hiteshbhai having been recorded by the Investigating Officer. Thus, the court has not thought it proper to place reliance upon the said statement of Hiteshbhai and has enlarged the applicants therein on bail. In the facts of the present case also, as noted hereinabove, the first information report makes reference to one Divyaraj alias Montu and the only place where the applicant's name is mentioned is the above referred statement of Hiteshbhai recorded on 4th September, 2011. Under the circumstances, the learned Additional Public Prosecutor is not in a position to demonstrate from the record of the case that the identity of the applicant has been established and that he and Divyaraj alias Montu are one and the same person. Moreover, from the record of the case there is nothing to show that the applicant herein has any criminal antecedents and that there is any apprehension of his tampering with the evidence or trying to influence the witnesses. Considering the fact that the applicant is a student and looking to his age as well as in the light of the aforesaid discussion, this court is inclined to exercise discretion in his favour.
5. For
the foregoing reasons, the application succeeds and is accordingly allowed. The applicant
is ordered to be released on bail in connection with I-C.R. No.374/2011 registered with Amraiwadi Police Station which was subsequently transferred to the DCB Crime, Ahmedabad on executing a bond of Rs.5,000/- (Rupees Five thousand only) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that he shall
not
take undue advantage of liberty or misuse liberty;
not
act in a manner injurious to the interest of the prosecution;
surrender
his passport, if any, to the lower court within a week;
not
leave the State of Gujarat without prior permission of the Sessions Judge concerned;
mark
presence at the concerned police station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for six months, and thereafter once in every three months till the conclusion of the trial;
furnish
the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of this Court.
6. The
authorities will release the applicant only if not required in connection with any other offence for the time being.
7. 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.
8. Bail
bond to be executed before the lower court having jurisdiction to try the case.
9. It
is clarified that any observations made in this order are only prima facie observations for the purpose of considering the question of grant of bail and the trial court shall, in no manner, be influenced by the above referred observations and shall proceed with the trial on merits
10. Rule
is made absolute accordingly to the aforesaid extent. Direct Service is permitted.
(
Harsha Devani, J. )
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