1. By way of present petition under Section 439(2) of the Code of Criminal Procedure, the State of Gujarat has challenged the order dated 27.01.2012 passed by Learned 4th Additional Sessions Judge, Jam - Khambhaliya, District Jamnagar in Misc. Criminal Application No. 28 of 2012, by which the respondent has been released on regular bail for the offences punishable under Section 302, 323, 325 and 504 of the Indian Penal Code and Section 135(1) of the Bombay Police Act.
2. A brief facts emerges from the case are as under :
That Amitbhai Jaswantbhai Vithlani lodged a complaint with Police Sub-Inspector, City B Division Police Station, Jamnagar on 4.1.2012 and alleged that he went at Dwarka on 3.1.2012 and he was called by the Accused Kishorbhai Damjibhai Vithlani who happens to be cousin of the complainant and beaten with a stick. Pursuant to which he sustained injuries on hand, chest etc. The FIR, which is annexed with the petition is perused, it appears that, complainant Amitbhai Jaswantbhai Vithlani was a resident of Rajkot City. They went Dwarka on 3.1.2012 and after visiting temple, he started traveling in his car at Rajkot. On the way, he met his cousin Kishorbhai Damjibhai Vithlani, who is a resident of Dwarka itself. Kishorbhai Damjibhai Vithlani asked Amitbhai Jaswantbhai Vithlani to go along with him as he had some personal work. He sat in the car of Kishorbhai Damjibhai Vithlani and reached near a hotel known as 'Nanji” hotel. He parked his car and after abusing, he started beating him with a wooden stick on his both legs and left hand. Pursuant to the attack, Amitbhai Jaswantbhai Vithlani fell down and thereafter the accused Kishorbhai Damjibhai Vithlani started giving kick to him. As Amitbhai requested to Kishorbhai not to beat him. Pursuant to which Kishorbhai left the place and went towards his hotel. Since the accused had left the place, Amitbhai went towards a pan shop and requested to call an ambulance. Pursuant to which, he called for ambulance. Initially, he was taken to Dwarka Government Hospital in the ambulance, but subsequently, he was transferred to one Gokul Hospital at Jamnagar. While the treatment was going on, he was fully conscious and he lodged the FIR.
3. It is alleged in the FIR that the reason for attack is the dispute between the accused and the father of Amitbhai who had expired two years prior to the incident. It is also alleged in the FIR that 8 days prior to the incident, Amitbhai had called Kishorbhai and some altercation took place between them. Initially, the complainant was treated at Jamnagar Hospital, however, he was transferred in a private hospital at Ahmedabad where he expired on 10.1.2012. Pursuant to the lodging of FIR, police personnel started investigation and recorded several statements of the witnesses. The accused came to be arrested by the police agency on 14.1.2012. The accused filed application under Section 439 of the Code of Criminal Procedure before the Sessions Judge and requested to release him, which was allowed by the impugned order. Hence, this petition.
4. Ms. Jirga Jhaveri, learned APP assailed the impugned order passed by the Sessions Court. She would submit that the Trial Court had erred in considering the application of the accused that the person has lost his life. She would submit that looking to the injuries sustained by the deceased, it is the case of murder and therefore, as the offence is of a serious offence, the Trial Court ought not to have released him on bail. She would submit that when the deceased himself has lodged the complaint and clearly described the entire incident, the Trial Court has wrongly concluded that the case requires consideration. In view of injuries sustained by the deceased on the vital part of the body, she would submit that, looking to the accusation made by the deceased, the Trial Court ought not to have exercised its discretion in favour of the accused as the charge of offence is of murder.
5. On the other hand Mr. Pravin Gondaliya, learned advocate for the accused would submit that the order impugned is very well reasoned order and the case is exhaustively considered by the Trial Court. The reasons for enlarging the accused are cogent with regard to the case and therefore, as per the decision of the Apex Court that exercising power under Section 439(2) of the Code of Criminal Procedure is not required in the present case. He submits that initially the offence was registered only under Sections 323, 325 and 504 of the IPC and under Section 135(1) of the Bombay Police Act. If the complaint itself is only perused, it is clear that the weapon is a wooden stick, which was used by the accused, no vital part of the body was targeted. He would submit that as per the allegations made in the FIR itself, he sustained injuries on left hand and simple injuries on his legs and on left eye. He has also sustained injuries on ribs but it is not clear about the same. He would further submit that there is no motive or intention on the part of the accused and there was no serious dispute between the family. He would submit that on the contrary, the deceased himself stated in the FIR that he had threatened the deceased not to dare to enter in Rajkot city. Mr. Gondaliya, learned advocate for the accused has relied upon the medical evidence with regard to the injuries sustained by the deceased. He has further submitted that by catena of decisions, the Apex Court held that the principle of canceling bail would be different than considering the application under Section 439(2) of the Code of Criminal Procedure at the initial stage.
5. In support of his submission, he has relied upon the case of Savitri Agarwal & Ors. V. State of Maharashtra reported in 2009 (8) SCC 325. By relying upon Para 29 and 30 of the said judgement, he submitted that the material which was on record had not properly considered by the Trial Court and the High Court has committed serious error in canceling the bail which is already granted. The Court can certainly entertain the application for cancellation of bail, if the order passed by the Trial Court is found to be perverse order.
6. I have heard learned advocate for the respective parties and have gone through the papers of investigation produced by the learned APP. The following facts are not in dispute at all.
1. The deceased and the respondent accused are cousins.
2. The deceased is resident of Rajkot city while the accused is a resident of Dwarka where he is having his own hotel.
3. The deceased went to Dwarka where all of a sudden he met his cousin Kishorbhai i.e. the accused.
7. He was attacked with the stick and sustained injuries on hand and on several parts of the body. He himself got up and requested the pan cabin owner to call ambulance and after initial treatment at Dwarka Civil Hospital and thereafter he was shifted to private hospital at Jamnagar and thereafter, he was transferred to the private hospital at Rajkot city and his family shifted him to the private hospital at Ahmedabad where he succumbed to death on 12.1.2012 i.e. after 7 days of the incident. Now if the panchnama and the discovery of muddamal i.e. wooden stick is of 38 inches i.e. 3ft long. As per certificate issued dated 4.1.2012 issued by the M.O.C.H.C., Dwarka, five injuries are mentioned therein. It has been observed that the deceased had sustained injuries of fracture on left elbow and there are swelling on different parts of the body. At item No. 4 he had opined that he may be fracture on ribs. The certificate issued by Gokul Newteck Hospital at Jamnagar where he was initially treated. There were fractures on ribs and there were few C.L.W. As per certificate of Gokul super-speciality at Rajkot where he was immediately transferred, it appears that, there were fractures of 7th and 8th ribs on left side and fracture on left malleus on left foot.
8. Now if the post-mortem report is perused, it appears that there were other external injuries but are of C.L.W. nature. The cause of death is found to be injuries over the body and its complications.
9. If, prima facie the medical evidences are appreciated, the serious injuries sustained by the deceased are of fractures of 7th and 8th ribs on left side. However, the reason for cause of death tentatively arrived at by the doctor is the injuries and its complications. Looking to the time gap between the incident and death of the injured and injuries sustained by him, I am of the opinion that the same is considered exhaustively by the Trial Court. It cannot be treated as perverse findings which would require any interference by the Court while exercising its power under Section 439(2) of the Code of Criminal Procedure. I am aware that while entertaining the application under Section 439(2) of the Code, the Court has to consider the nature of accusation and severity of punishment. In case of punishment and nature of supporting evidence, reasonable apprehension of tampering with the evidence, apprehension of threats to the complainant as well as prima facie satisfaction of the Court in support of the charge, I have found that, in the present case, the learned Sessions Judge has exhaustively dealt with all these aspects. The Trial Court has also imposed necessary conditions. It is not even the case of the prosecution that after releasing of the accused way back in January, 2012, he has misused his liberty by indulging in any similar type of criminal activities or interfered with the course of investigation or has attempted to tamper with the evidence or threaten any of the witnesses. Since the passport is already with the investigation agency, there is no question to fleeing away. It is not the case that he was not available after his release from January, 2012.
10. In view of the above facts, the present petition is disposed of as dismissed. Rule is discharged.
*Kazi
(A.J.DESAI, J.)