1. This successive bail application under Section 439 of the Criminal Procedure Code has been preferred by the present applicant, who is arrested in connection with complaint being C.R. No. I. 20/2012 registered with Sanand Police Station, District: Ahmedabad for the offences punishable under Sections 147, 148, 149, 506(2), 504, 302, 307, 323, 324 and 325 of the Indian Penal Code and Section 3(1)(10), 3(2)(5) of the Atrocity Act.
2. The case of the prosecution is that, on the date of incident, at about 6:30 hours in the evening, the complainant returned to his village from Sanand and parked his rickshaw near Majibhai s pan parlor. At that time, one of the accused started quarrel with the complainant and glass of rickshaw of the complainant was broken. The passerby intervened and asked co-accused-Yuvrajsinh not to behave in a rude manner.
3. It is also alleged that the present applicant, in the meantime, reached the place of occurrence and was armed with the stick. He inflicted stick blow on the head of the deceased. Noticing presence of other persons, the accused fled away from the scene of offence. Thereafter, the injured persons were taken to the Hospital where Atulbhai was declared dead.
4. Learned advocate Mr. Mitesh Amin appearing for the applicant has urged that the trial has not yet commenced and it may take long time. He further urged that the co-accused-Yuvrajsinh has been granted regular bail by this Court in Criminal Misc. Application No.9414 of 2012 and therefore, on the ground of parity, he should be granted bail. It is further urged that he is the permanent resident of State of Gujarat and there is no likelihood of his fleeing away from justice. It is further urged that the applicant is undergoing incarceration for a long time unnecessarily when there is no involvement of the present applicant in the offence alleged.
He also stated that two of the witnesses, who were injured and whose dying declarations at the relevant time were recorded, have not named this applicant. Therefore also, at this stage, benefit should be given to him.
5. Learned APP Mr. R.C. Kodekar appearing for the respondent-State has strongly objected to grant of bail. He pointed out that two fractures are caused in the area of the head of the deceased and postmortem note also indicates that the death occurred on account of head injury. There are overwhelming evidences connecting the present applicant with the crime directly and considering the seriousness of crime, his availability at the time of trial is also questioned. He urged the Court not to grant him regular bail considering highhanded attitude of the applicant at the time of incident.
6. Upon hearing both the sides and on duly considering the material on record, this application is being rejected on the following grounds:
(a) There are overwhelming evidences to indicate prima facie involvement of the present applicant, who arrived at the scene of offence with a stick and inflicted stick blow on the head of the deceased. Some of the witnesses, who were also heavily injured, if had not named the present applicant in the dying declaration ipso facto would not take away the statements of these witnesses recorded by the police on the very same date or on the next date.
(b) As noted hereinabove, there are many eyewitnesses who have prima facie spoken of the involvement of this applicant, who is alleged to have inflicted injuries over the head of the deceased. Their versions also get corroborated by the medical evidence, particularly, postmortem note which indicates also the cause of death on account of such head injuries.
(c) The ground of parity will not be available to the present applicant, as the role attributed to the co-accused is far less graver. The Court, while considering the regular bail application, cannot be guided by the only factum of grant of regular bail to the co-accused. The respective roles and personal circumstances shall have to be regarded as they are vital aspects.
(d) Considering the fact that the innocent person has succumbed to the serious injuries caused by the present applicant coupled with the fact that the crime is serious in nature, entailing punishment for life as well as death penalty with possibility of tampering with the evidence or fleeing away from justice, this discretion is not required to be exercised in his favour and the application is, therefore, deserve to be rejected.
(e) As a parting note, it is necessary to mention that though trial has not begun, no exact cause is brought forth by either side and one of the possibility made out by the learned APP is that since rest of the co-accused are already on regular bail, their availability could also be one of the issues. Be that as it may, with no details being made available, that alone cannot be the ground to grant personal liberty when there is a likelihood of societal interest being jeopardized by such grant.
In view of the above, the application is rejected. Rule is discharged.
(MS SONIA GOKANI, J.) Chandrashekhar* Page 4 of 4