Rajeshbhai Vechatbhai Baraiya vs State Of Gujarat

Ilesh J. Vora, J

As both these application arise out of the one and same FIR, they were heard together and are hereby disposed of by this common order.

These applications under Section 439 of the Code of Criminal Procedure is for grant of regular bail to the applicants in connection with the FIR being I-C.R.No. 11207031220059 of 2022 registered with Jambughoda Police Station, Dist. Panchmahal, for the offence punishable under Sections 302, 323, 325, 504, 506(2) and 114 of IPC.

Heard learned counsel Mr. Dave for the applicants and State.

Brief facts leading to filing of present application are that, the applicants are real brothers. The incident in question was arisen on 03.03.2022. Deceased Gangaben was the mother of the applicants. Prior to the incident, the deceased mother, by consent of the parties, made partition of the property. The applicants have demanded for division of partition. On the day of incident, deceased had refused to consider the request of the applicants to reconsider the allocation of the property. It is in this circumstances, both the brothers have caused the injuries to their mother deceased by giving kicks and fist blows, as a result of which, she succumbed to injuries. The complainant who happens to be brother of the applicants lodged an FIR for the offences as referred above. The applicants have been arrested on 04.03.2022. After completion of investigation, chargesheet came to be filed for the offence of murder etc. The bail applications of the applicants came to be rejected by the Sessions Court concerned vide order dated 14.06.2022 and 15.06.2022 respectively.

Being aggrieved with the impugned orders, the applicants have come up before this Court seeking regular bail by way of present applications.

Learned counsel Mr. Ujjaval Sareen appearing for the applicants submitted that, no case is made out for the offence punishable under Section 299 and 300 of IPC. He further submitted that, during the postmortem, there were ni injuries seen on the body of the deceased and still the cause of death is uncertain. In such circumstances, he urged that, considering the role attributed to the present applicants, at the most, offence under Section 325 of IPC can be said to have been committed.

Opposing the bail application, learned APP Mr. J.K.Shah, for the State contended that, there is a prima facie evidence to believe that, the applicant has committed the offence and therefore, considering the nature and gravity of accusation, severity of punishment in the event of conviction, this is not a case to exercise the discretion.

Heard respective parties at length and perused the chargesheet case papers.

In the facts of the present case, it is not in dispute that the applicants are real brothers and there was a dispute with regard to partition of the property for which deceased was not agreeable to review earlier decision of the partition. In this background facts, the applicants have caused injuries to the deceased by giving kicks and fist blows. On perusal of the postmortem reports, no visible injuries found on the body of the deceased and cause of death is cardio respiratory arrest due to pathology in heart. In such circumstances, this Court is of prima facie view that considering the prior dispute of property, the cause of death and the manner in which incident took place, it can be said that, the act was a sudden fight without any premeditation. In such circumstances, without commenting on the merits of the case, considering the role attributed to the applicants herein and evidence in support of the charge, I am inclined to release the applicants on bail.

The applicants are ordered to be released on regular bail in connection with the FIR being I-C.R.No. 11207031220059 of 2022 registered with Jambughoda Police Station, Dist. Panchmahal on executing a personal bond of Rs.10,000/- (Rupees Ten Thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that they 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] 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 this Court;

The Authorities will release the applicants only if they are 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 learned 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, 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 applicants on bail. Rule is made absolute to the aforesaid extent.

Direct service is permitted.