Lilaben @ Ansuya Parvatsinh Bamaniya vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

This is an application filed by Lilaben @ Ansuya Parvatsinh Bamaniya (Original Accused No.2) for enlarging her on anticipatory bail, under Section 438 of the Code of Criminal Procedure Code (for short "Cr.P.C.") in connection with the FIR being 11207061200571/2020 registered with Shahera Police Station Panchmahal for the offences punishable under sections 143,147,148,149,302,307,504 and 506(2) of the Indian Penal Code read with section 135 of Gujarat Police Act.

Heard learned Counsel Mr. I.H.Syed appearing with Mr. Chirag B. Upadhyay for the Applicant and learned APP Mr. H.K.Patel for the Respondent - State of Gujarat through video conference.

Rule. Learned APP waives service of notice of Rule on behalf of the Respondent - State of Gujarat.

The factual matrix of the case is as under :

It is contended that the applicant had approached the Sessions Court of Panchmahal Godhara but the same application was rejected therefore, the present application is filed. As per the present FIR the accused persons in connivance with each other formed unlawful assembly and assaulted the first informant and deceased person. It is also contended that accused person namely Dalpatbhai had assaulted the first informant and deceased with sickle (dhariya), it is under these circumstances the present FIR has been lodged. It is also contended that the present applicant has been falsely involved in the present case and the applicant is a law abiding citizen. It is further contended that the applicant was not present at the time of offence and since the accused no.1's second wife's name is also Lilaben, who is implicated as accused no.3, hence, the name of the applicant is wrongly implicated. It is contended that the applicant was at her residence at Godhra with her children which is nine kilometers away from the place of offence. It is also submitted that the applicant is a lady accused and not having any criminal antecedents. On all such grounds the present applicant prays for enlarging her on anticipatory bail.

Learned Counsel Mr. I.H. Saiyed appearing with learned Advocate Mr. Chirag B. Upadhyay for the applicant has vehemently submitted that in the present case applicant is a lady accused. Further pursuant to the FIR also there are two Lilaben and therefore, when the present one is more than 9 km far from the scene of occurrence, upon that premise, the present lady applicant is falsely implicated in the FIR and therefore the applicant may kindly be granted anticipatory bail.

In the second limb of argument learned Counsel Mr. Saiyed has drawn the attention of this court that pursuant to the FIR that there are two parts in the commission of offence as per the allegations. The first part was scuffle and subsequently the accused person came with a sickle (dhariya) and inflicted blow on the deceased. Therefore, as such there is no role of the present lady accused. Therefore this Anticipatory bail application may kindly be allowed.

In the third limb of argument learned Counsel Mr. Saiyed has submitted that there were two wives who came together in the Scorpio car at that time as such there is no intention of commission of such offernce and later on due to scuffle which was taken place at the scene of offence resulted into the FIR and therefore also there is no requirement of present lady applicant for custodial interrogation.

Per contra, learned APP Mr. H.K. Patel heavily opposed the bail application and submitted that this is good case for trial, since the occurrence has not taken place at the spur of moment. Further, it is only on the basis of scuffle on the contrary sickle (dhariya) was in the car. Therefore, there is full intention of commission of such offence, therefore, this applicant is not deserving anticipatory bail and further the offence registered against the present applicant is under Section 149 of the Indian Penal Code, therefore also there is strong prima facie case upon the present applicant, though she is a lady. Therefore, there is requirement of custodial interrogation on the basis of the prima facie case. Learned APP Mr. H.K. Patel vehemently argued that the offence is serious under Section 302 of the IPC. Moreover, the date of the FIR is 05.06.2020, wherein alibi defence was taken on 01.08.2020.

Having heard the arguments advanced by both the sides and as per the catena of decision of the Hon'ble Supreme Court there are only two factors which are required to be considered one is prima facie case, and second is necessity of accused for custodial interrogation.

Pursuant to the FIR it transpire that initially there were five accused arraigned in the FIR.

Dalpatbhai @ Bhalabhai Vechatbhai Bamaniya

Lila @ Ansuya wife of Dalpatbhai @ Bhalabhai Bamaniya

Lilaben wife of Dalpatbhai @ Bhalabhai Bamaniya

Dharmendra Dalpatbhai @ Vechatbhai Bamaniya

Harishbhai Raijibhai

Further as per the case of the prosecution the date of the FIR is 05.06.2020, the accused persons came at the place of occurrence by Scorpio car wherein there were two wives Lila @ Ansuya and another Lilaben and they abused with a non parliamentary words to the informant. Not only that they also started scuffle and thereafter they have taken sickle (dhariya) from the car and inflicted upon the Bhalabhai Bamaniya with an intention to kill him and later on they inflicted blow on the head as well as upon the hands and backside of the deceased and left the place of occurrence. Informant called Bharatbhai, Harishbhai and Jigneshbhai and thereafter deceased was taken to Godhara Civil Hospital where deceased was succumbed to injuries. It is also stated that in the FIR the complainant was conscious when his statement was going on, and therefore, prima facie, the present lady applicant is squarely involved in the serious offence, not only that but the custodial interrogation is required since the offence is serious one. Further, alibi is taken after a long time and therefore, also prima facie thought is not giving weightage to the same. Further, as per the catena of decisions, when there is a serious case like present one wherein the offence is under section 302, in that case, Court would not exercise the discretion under section 438 of Cr.P.C.

The further case of the prosecution is that on 5.6.2020, when the complainant Mr. Samantbhai Nanabhai Charan was on his way to labour job at Milk Dairy, at that time, his bhanja (maternal nephew) Mr. Bharatbhai Hajabhai Charan came to him by Car and said that let us visit to the land which is purchased by Jitubhai Raval from Accused No.1 - Dalpathbhai @ Bhalabhai and the same land is purchased by the complainant. Therefore, when visited the place (the disputed land), at that time Mr. Dharmendra, son of Accused No.1 and son-in-law Harishbhai was very well present at the so called land. Thereafter, at that time Accused No.1 and his two wives came to the place by car and started using abusing language / non-parliamentary words that why they purchased land from Jitubhai Raval. The complainant told Accused that they have sold it to Jitubhai Raval then from Jitubhai Raval to complainant and Bharatbhai purchased but all the 5 accused started scuffle (including present lady who is before us as Applicant) and Accused No.1 Dalphatbhai @ Bhalabhai taken up sickle (dhariyu) from his Scorpio Car and inflicted upon Bharat and also upon the complainant. Bharat was being inflicted on head, hands and backside and ultimately Bharatbhai fall down with blood stain. Therefore the complainant called two persons Bharatbhai and Harishbhai and took him to Civil Hospital wherein Bharat succumbed to the injuries.

Thus, prima facie, on the basis of FIR it transpires that the present Applicant was member of unlawful assembly from the beginning since Accused No.1 was carrying sickle (dhariu) from the Scorpio Car itself and he was having two wives accompanied with him. Further, at the so called land his son and son-in-law were very well present and therefore prima facie all the 5 members have called an unlawful assembly and the same was preplanned and therefore it is strong prima facie case upon the present Applicant wherein the FIR is registered under Sections 143,147,148,149,302,307,504 and 506(2) of the Indian Penal Code read with section 135 of Gujarat Police Act. of IPC and therefore this is not a fit case to exercise discretion under Section 438 Cr.PC.

So far as the submission regarding alibi is concerned, the same is not tenable in the eyes of law as the same is taken after a month.

Therefore, the petition is devoid of merits, hence, this application is disallowed. Not only the complainant was injured at the time of scene of offence but also he was in a conscious position when the complaint was given. Therefore, prima facie, the prosecution has made a strong case. Therefore, this is not a fit case to exercise discretion under section 438 of the CrPC. The Application stands dismissed accordingly. Rule is discharged.