Mahendrabhai @ Montu Dineshbhai Chauhan vs State Of Gujarat

Divyesh A. Joshi, J

This is an application at the instance of an accused praying for regular bail in connection with the First Information Report being C.R. No. 11204065230073 of 2023 registered with the Vaso Police Station, Kheda for the offence punishable under Sections 302,201, 120(B) and 34 of the Indian Penal Code and under Section 135 of the Gujarat Police Act.

Learned advocate Mr. K.J. Panchal appearing for the applicant has submitted that the criminal complaint was registered on 21.04.2023 and the present applicant-accused came to be arrested on 22.04.2023 and since then, he is in jail. The investigation has already been completed and the charge-sheet has also been filed by the concerned Investigating Officer. Learned advocate Mr. Panchal has further submitted that initially the first information report came to be lodged against unknown person. Thereafter, investigation was carried out and at the end of the investigation, at the time of filing charge-sheet, total five persons have been shown as the accused, in which, the present applicant-accused has been shown as accused No.4. It is also submitted that the allegations levelled in the FIR are very serious in nature. However, looking to the police papers, it appears that the present applicant-accused is not at all involved in the commission of crime. Learned advocate Mr. Panchal has further submitted that the entire case of the prosecution hinges upon circumstantial evidence. The Investigating Officer has drawn the reconstruction Panchnama, wherein the entire sequence of events of the incident has been very categorically mentioned by one of the co-accused. It is further alleged that as per the provisions of Evidence Act, such a reconstruction Panchnama would not be admissible piece of evidence as the same is in the nature of confession and admission of accused while in police custody, and as such, the same would hit by Sections 24 and 25 of the Evidence Act and, therefore, reliance cannot be placed upon such an admission made by the accused at the time of preparing the Panchnama. Learned advocate Mr. Panchal has submitted that without raising any dispute about the admissibility or inadmissibility of such an evidence at this stage, he simply submits that if the Hon’ble Court would go through the contents of the said Panchnama, the same goes on to show that the present applicant-accused has not directly or indirectly involved in the commission of the offence. It is further submitted that as per the reconstruction Panchnama, the present applicant-accused did not make any phone call to the deceased. It was the accused No.1 who had made a phone call to the deceased and asked him to come at the scene of offence. When the deceased reached at the place of occurrence, the present applicant-accused was asked to go along with the deceased to bring some liquor. The applicant-accused was called upon by the other accused persons at a particular place for the purpose of settlement of the dispute with the deceased. The present applicant-accused did not have any knowledge about the ill-intention and the criminal conspiracy hatched by the other accused persons. Learned advocate Mr. Panchal has also submitted that the deceased was having an extramarital affair with the wife of another co-accused and the accused No.1 was trying to persuade him to put an end to such relationship and for that purpose, the present applicant-accused was informed to call the deceased at a particular place as the other co-accused persons wanted to settle the dispute with the deceased. It is further submitted that it is also found out from the police papers that at the time of commission of the crime, the applicant-accused was standing far away from the place of occurrence and he was frightened after seeing the incident. Learned advocate Mr. Panchal has submitted that there is no recovery or discovery at the instance of the applicant-accused. The present applicant-accused has been arraigned as an accused in the present case on the basis of the confessional statement made by the co-accused. In such circumstances, referred to above, Mr. Panchal prays that there being merit in this application, the same be allowed and the present applicant-accused may be enlarged on bail.

Learned APP Mr. H.K. Patel appearing for the applicant has submitted that the role of the present applicant-accused is clearly spelt out from the compilation of the charge-sheet papers. Learned APP has further submitted that during the course of investigation, it is found out that the present applicant-accused has made a phone call to the deceased and asked him to come at a particular place. Not only that, when the deceased reached at the place of occurrence, at that point of time, the present applicant-accused had collected one stick which was put at certain distance and ultimately at the time of incident, the said stick was used and, therefore, active involvement as well as participation of the applicant-accused is clearly found out. Not only that, at the time of commission of the offence, the present applicant-accused was standing at little bit distance with a sole intention to keep watch of the movement of the people. It is further submitted that during the course of investigation, the blood stained Banyan as well as Jeans are recovered at the instance of the applicant-accused. Therefore, the contention raised by the learned advocate for the applicant that the present applicant-accused was standing at some distance from the place of occurrence is not believable as if he was standing far away from the place of occurrence, then how the blood stains were found to be there on the Banyan and Jeans of the applicant-accused. Therefore, considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.

I have heard the learned advocates appearing on behalf of the respective parties. I have perused the police papers as well as other documents produced by the applicant along with the memo of the application. It is found out from the record that applicant-accused is in judicial custody since 22.04.2023. The investigation is already completed and after submission of the charge-sheet, present bail application is preferred. It appears from the materials available on record that the present applicant-accused has been shown as an accused No.4 in the charge-sheet. The entire dispute arose due to the extramarital affair of the wife of the accused No.5 with the deceased. Therefore, the accused No.1 gave threat of dire consequences to the deceased. It also appears that the other co-accused had asked the applicant-accused to call the deceased at a particular place as they wanted to persuade the deceased and settle the dispute. The only role attributed to the present applicant-accused is that at the time of commission of the offence, he was asked to keep watch that nobody would come at the scene of offence. From the averments made in the application, it is found out that as per the statement of one witness namely Anilkumar Jadav, who was present at the place where the severed head of the deceased was buried, except the present applicant-accused, all other accused persons were present there at the time of hiding the severed head of the deceased. It has also come on record that the present applicant-accused has been arraigned as an accused on the basis of the confessional statement made by the other co-accused before the police. There is also no evidence in the nature of any recovery or discovery of weapon used in the commission of crime at the instance of the applicant-accused.

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.

In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR as well as in the charge-sheet papers, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with C.R.No.11204065230073 of 2023 registered with the Vaso Police Station, Kheda, on executing a personal bond of Rs.15,000/- (Rupees Fifteen 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 injuries 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 Sessions Judge concerned;

[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[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 this Court;

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.

At the trial, the 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 to the aforesaid extent.

Direct service is permitted.