By way of present successive bail application, the applicant has prayed to release him on regular bail in connection with offence being C.R. No.I-320 of 2011 registered with Gandhidham Police Station for the offence punishable under Sections 302, 201, 1290(B) and 188 of the Indian Penal Code and Section 25(1)(a)(b) and Section 27 of the Arms Act.
Heard Mr.P.M. Lakhani, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Lakhani, learned counsel for the applicant, states that the applicant is innocent and he has been falsely implicated in the offence. He has contended that prima-facie no case is made out against the present applicant. He has contended that motive of the applicant is not proved or established by the prosecution beyond reasonable doubt. Hence, in absence of motive, case of the prosecution cannot be considered and it is fatal to the case of the prosecution. He has further contended that even from the charge-sheet papers and from the statements of witnesses, no rivalry or enmity is established. He has further contended that applicant has no cause or motive to kill the deceased. He has further contended that co-accused has already been released on 02nd March, 2012 by the coordinate Bench of this Court in Criminal Miscellaneous Application No.2073 of 2012. He has further contended that in the present case investigation is already over and charge-sheet is filed and the applicant is a permanent resident of Rajkot. Even it is not the case of the prosecution or prosecution has never doubted about presence of the present applicant or that he will tamper with the evidence. He has further contended that when presence of the applicant is secured and as the investigation is over and there are no chances of tampering with the evidence, it is the duty of the Court to consider the case of the applicant. He has further submitted that as the applicant is behind the bars since September, 2011 and looking to the pendency of cases, trial will take long time, considering the jail period, the applicant may kindly be released on bail. He has further contended that applicant is ready to abide by any conditions that may be imposed on him while releasing him on bail.
As against this Mr.Jani, learned Additional Public Prosecutor for the respondent-State, states that so far as argument of the learned counsel for the applicant that motive is not proved or established is concerned, is not fatal to the case of prosecution. He has relied upon judgments reported in 1996(9) SCC 233 and JT 2010(6) 400 and contended that absence of motive is not fatal to the case of the prosecution. He has further contended that presence of the applicant at the seen of incident is established beyond reasonable doubt. He has read the statements of eye-witnesses and contended that as per the statement of one Pradipsinh the applicant was passing through the place where the deceased was standing in Wagon R car and showing the deceased, the applicant came back in car and fired from point blank on the applicant. Because of fire from point blank, deceased had received fatal injury. Mr.Jani has further contended that fire arms was discovered through the present applicant. Even empty cartridge was also recovered. He has read the ballistic expert opinion and argued that gun powder was found from the barrel of the weapon used by the applicant. He has further contended that the applicant had fired from point blank with an intention and knowledge to kill the deceased. He has contended that prima-facie case of 302 is established against the present applicant. He has contended that bad character cannot be considered as an admissible evidence, but at the same time, previous history of the applicant must be taken into consideration. The applicant is involved in all seven cases of 307, 324, etc. and even in one case, muddamal fire arms was recovered from the applicant. He, therefore, contended that looking to the seriousness of the offence committed by the applicant and circumstantial evidence produced on record, present applicant may be rejected.
Heard learned counsel for the respective parties and also perused papers produced before me. This is a successive bail application. Earlier the applicant had withdrawn the application. I have perused statements of eye-witnesses and it appears from the statements that the applicant had fired on neck of the deceased from point blank, which resulted into fatal injury. Looking to the statements of witnesses and ballistic expert opinion, as per provision of Section 299 of the Indian Penal Code, there was knowledge and intention to kill the deceased. When ingredient of Section 299 is established then no Court has right to consider that it is not a case of murder or it is not an act without knowledge or intention. No doubt at this stage the same cannot be considered by the lower Court and has to consider the matter in accordance with law and on the oral as well as documentary evidence, which may be or can be produced before it. Yet at this stage when the bail application is argued at length and when learned counsel for the applicant has argued that the present applicant is totally innocent, this Court has observed as mentioned above. The muddamal fire arms is recovered at the instance of the applicant. Looking to all these facts of the case and circumstantial evidence produced on record, so far as question regarding parity is concerned, the same cannot be granted. Role of co-accused, who is released on bail by the coordinate Bench of this Court, is not similar to that of present applicant.
In the aforesaid facts and observations, present application deserves to be dismissed and is hereby dismissed. Rule is discharged.
(Z.
K. Saiyed, J) Anup Top