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Judgment
A.S. Supehia, J
Heard the learned advocates for the respective parties through video conferencing.
The present application is filed under Section 439 of the Code of Criminal Procedure in connection with an F.I.R. being C.R. No.IÂ169 of 2019
registered with Junagadh Taluka Police Station, Dist.Junagadh for the offences punishable under Sections 302, 365, 143, 147, 148, 149, 201 and 120B
of the Indian Penal Code, 1860 and Section 135 of Gujarat Police Act.
It is the case of the prosecution in the F.I.R. that on 06.12.2019 at around 08:00 a.m., he had dropped his cousin  Menaand Nathabhai Luva on his
motorcycle at Chauta turn on the highway as he had to go to Junagadh and the first informant Rambhai Luca went to Kutiyana village for his job. It is
also alleged that at around 07:30 p.m. in the evening the first informant received a call from the sister of his cousin  Menaand Luva that he has not
reached home and she is not able to contact her brother on his mobile phone. The first informant thereafter completing his job and came to the place
where he had dropped Menaand Luva and also searched for him in the nearby areas. It is alleged that the first informant tried to search Menaand
Luva till afternoon of the next day and on being unsuccessful, the first informant submitted an application of missing before Kutiyana Police Station on
07.12.2019 at 01:00 p.m. It is further alleged that when the police investigated regarding the missing application, they came to know through the call
details of Menaand Luva that on 06.12.2019 Menaand Luva had a conversation from his phone number 9106139147 with a phone number 9512630222
and, therefore, the police called on that number and asked the person to come at Kutiyana Police Station and when that person reached police station
upon inquiring he said that his name was Ajay Arajan Batva. It is alleged by the first informant that when he was inquiring about his cousin Â‐
Menaand he had come to know that a person named Vajsi Maldebhai Bhadarka has seen both Ajay and Menaand together in Junagadh on
06.12.2019.
Learned advocate for the applicant has submitted that since during the inquiry the accused no.1, Ajay Arjunbhai Batva was not clearly disclosing
about the questions asked, he was taken to Junagadh and there he said that he had talked to Menand Luva regarding sale of gold biscuits and had
called him at Motibaug for the same. It is submitted that the accused Ajay Batva said that along with him other accused Ashish Vanda and Pintu
Babariya had met Menand; Menand had shown them the pictures of the Gold Biscuits on his mobile phone and had demanded to see the money
therefore all of them took Menand to house of the accused Ashish Vanda and showed him the money; thereafter the accused persons asked Menand
to call his friend Sanjay Kargathiya to bring the gold biscuits but Sanjay Kargathiya was not receiving the call of Menand and therefore Menand had
cancelled the deal. It is alleged that thereafter accused Ajay said that he went to drop Menand at the S.T.Bus Depot on his Activa and after dropping
him he received a call from accused  Ashish to stop Menand from going as he had some work with him, so accused inquired by calling Menand and
since he was still at the depot he picked him from there and they met accused Ashish and Pintu outside the depot and accused Ashish told them to
follow him and on the way they picked accused Jignesh @ Jagu @ Jagdish Paba Kodiyatar and present applicant â€" accused Bavan @ Tako
Bhikhabhai Kodiyatar, it is alleged that they went to an abandoned stone query situated at Plasva Village and there the accused tied Menand Luva and
had beaten him with Plastic Pipes, wooden stick and he died. It is alleged that they buried the dead body of Menand At the boundary of the stone
quarry.
4.1 Learned advocate for the applicant has further submitted that the applicant is arraigned as an accused only on the extra judicial confessional
statement of the coÂaccused  Ajay Batva. It is submitted that the applicant is in no way connected to the alleged offence and has not even met the
deceased. It is also submitted that there is no recovery or discovery of weapons from the applicant. It is further submitted that not a single eyeÂ‐
witness is being found out by the Investigating Agency regarding the incident, except confession statement of coÂaccused before the police, there is
no contemporaneous legal evidence against the accused. It is further submitted that no blood stain was found from the clothes of the applicant herein.
It is further submitted that two pipes which were discovered at the behest of accused Jignesh @ Jago Kodiyar and Pintu Baraiya; they had beaten the
deceased Menand even on this ground the present applicant deserve to be released on bail by this Court.
4.2 Learned advocate for the applicant has submitted that the FSL report would also suggest that the applicant herein was not at all involved in the
offence. It is further submitted that in the FSL report there are no blood stain found on the belongings of the present applicant. It is submitted that the
Sessions Court, while rejecting the bail application of the applicant as incorrectly held that the applicant herein was is seen in the CCTV footage, it is
submitted that in none of the CCTV footage, the presence of the applicant is established.
Learned Additional Public Prosecutor appearing on behalf of the respondentÂState has vehemently submitted that looking to the role of the present
applicant, he may not be released on bail. It is submitted by her on the instructions of the investigating officer and that it is revealed from the CCTV
footage does not reveal the that the applicant was riding on the bike nor his bike is seen. However, he has submitted that the applicant has played
active role and considering the aforesaid aspects of the case, the applicant may be released on bail.
Having perused the materials 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, at this stage, this Court is inclined to grant regular bail to the applicant. This Court
has considered following aspects;
(i) The role attributed to the accused;
(ii) The investigation is over and the chargeÂsheet is filed. (iii) There is no eyewitness of the incident and the case of the prosecution is premised on
circumstantial evidence, and prima facie it appears that he is made an accused on the basis of extraÂjudicial confession of the coÂaccused Ajay
Batva;
(iv) Prima facie, it appears that the Trial Court has fallen in error with regard to involvement of the present applicant in view of the CCTV footage;
(v)Prima facie, the investigation reveals that the applicant is not captured in the CCTV footage;
(vi) The applicant is behind the bars since 14.12.2019.
(vii) The applicant is a young boy aged about 21 years;
This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation,
(2012) 1 SCC 40.
In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.
No.IÂ169 of 2019 registered with Junagadh Taluka Police Station, Dist.Junagadh, on executing a personal bond of Rs.10,000/Â (Rupees Ten
Thousand Only) with one local surety of the like amount to the satisfaction of the learned 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 his 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;
(e) mark presence before the concerned Police Station on alternate every Monday for initial six months and thereafter, on alternate Monday of every
English calendar month, for a period of six months, between 10:00 a.m. and 2:00 p.m.;
(f) furnish latest 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 Trial Court;
(g) not enter into Taluka Junagadh except marking of presence for a period of six months.
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 concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be
executed before the Trial 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. At the trial, learned Trial
Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant
on bail. Rule is made absolute accordingly.
Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this
order through Fax message, email and/or any other suitable electronic mode.
Learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court
through Fax message, email and/or any other suitable electronic mode.