[1] By way of present application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicants have prayed to release them on regular bail in connection with C.R.No.I-210 of 2011 registered with Rajkot Taluka Police Station, for the offence punishable under Sections 302, 365, 342, 346, 143, 323, 201 and 188 of the Indian Penal Code.
[2] It is submitted that by learned advocate for the applicant that the charge sheet is filed. It is also submitted that the FIR was lodged after the long time and the Investigating Officer has falsely implicated the present applicant. It is further contended that as stated in the FIR itself, while interrogating Sureshbhai Timbadiya by police on 29.09.2011, the complainant came to know about the incident, therefore, the FIR itself is not trustworthy. Learned counsel further submitted that the applicant is totally innocent, he has no criminal antecedence and therefore, he is required to be enlarged on bail.
[3] Learned APP Ms.C.M.Shah has opposed the application and stated that as all the accused had formed unlawful assembly and committed the murder, therefore, all the accused have equal criminal liability and present applicant should not be enlarged on bail.
[4] I have heard learned counsel for both the sides and considered the statements of witnesses and the affidavit filed by the Investigating Officer. It is the case of prosecution that on 21.09.2011, deceased Anil Vallabhbhai entered into the house of accused Ashok Kanji and after some time when he was coming out of that house, accused Suresh Khimjibhai saw the deceased and informed the juvenile accused Kishan Chandubhai. It is alleged that because of this incident the deceased was beaten by the accused and thereafter taken to the farm of accused Ashok Kanjibhai. As per the affidavit filed by the Investigating Officer, all other accused, except accused Ashok Kanji and deceased left the farm at about 3.00-3.30 p.m. and thereafter, accused Ashok Kanjibhai beaten the deceased and strangulated him. Prima-facie the fact emerges that when the offence of murder was committed by accused Ashok Kanjibhai, present applicant was not present and not actively participated. The charge-sheet is already filed and the applicant is in jail since 10.10.2011. In view of the above, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail.
[4] Hence, the applicant is ordered to be released on bail in connection with C.R.No.I-210 of 2011 registered with Rajkot Taluka Police Station, for the offence alleged against him, on his executing personal bond of Rs.20,000/- (Rupees Twenty thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall-
a) not take undue advantage of liberty or abuse liberty;
b) shall not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) shall maintain law and order and should cooperate the Investigating Officer;
d) shall not act in a manner injurious to the interest of the prosecution;
e) shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
f) furnish the address of their residence along with the proof 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;
g) surrender passport, if any, to the lower Court within a week.
[5] If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matter.
[7] Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute to the aforesaid extent. Direct service is permitted.
[M.D.SHAH, J.] ..mitesh..
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