Point of Law: Grant of Bail -Presence of the complaint is doubtful and that version of the prosecution of the complainant being eyewitness to the incident is doubtful and concocted.

ORDER :

1. The present successive application is filed under Section 439 of the Code of Criminal Procedure in connection with an FIR being C.R.No.I – 165/2019 registered with Kadi Police Station, District: Mehsana for the offences punishable under Sections 302, 307, 364, 365, 342, 120(B), 34 etc. of the Indian Penal Code and Section 135 of the Gujarat Police Act.

2. Heard Mr.Yatin Oza, learned arguing counsel with Mr. Zubin Bharda, learned advocate for the applicant and Ms.Moxa Thakker, learned Additional Public Prosecutor for the respondent – State assisted by Mr.Bhavesh Sarode, learned advocate for the original complainant through video conferencing.

3. Mr.Yatin Oza, learned arguing counsel with Mr. Zubin Bharda, learned advocate for the applicant has submitted that the applicant is absolutely innocent and has not committed any offence as alleged. He has submitted that the main accused – Ramiz Mohamahadbhai Ghanchi has preferred Criminal Misc. Application No.17901 of 2020 wherein the Coordinate Bench (Coram: Hon’ble Mr.Justice B. N. Karia) has enlarged the said accused vide order dated 24.12.2020. While inviting the attention of this Court to the observation made by the Coordinate Bench in the said case, he has submitted that the Coordinate Bench has specifically observed that the version of the prosecution about the complainant being eyewitness to the incident is doubtful and concocted. He has also invited the attention of the Court to the observation made by the Coordinate Bench regarding recording of the statements of three witnesses namely Sarfaraz @ bando Mansuri, Ashraf @ Kati Mansuri and Inayat @ Eno Mansuri who happened to be at the scene of offence and took the deceased to Bhagyodaya Hospital in the auto- rickshaw and one person known as Bapu among the locals, he has submitted that the statements of these witnesses reflects contradictory statements. He has also submitted that in view of the facts that on the ground of parity, the applicant may be enlarged on bail.

4. Per contra, Ms.Moxa Thakker, learned Additional Public Prosecutor for the respondent – State assisted by Mr.Bhavesh Sarode, learned advocate for the original complainant, who has filed the affidavit in this case, have invited the attention of this Court to the various statements made in the case along with the copy of the charge-sheet and has submitted that the present applicant is a prime accused who has inflicted blows with the iron rod on the deceased and due to almost 31 injuries on the body of the deceased, he has succumbed to injuries. While reading the complaint as well as various statements of the witnesses, she has vehemently submitted that prior to the incident, there was collusion between the two vehicles and due to first incident, which has happened on highway and, thereafter, the deceased was brought to the Chabutara Chowk and the accused named in the FIR have inflicted blows with iron rod and sticks upon the deceased. She has submitted that the deceased, while going to the hospital in rickshaw, has given dying declaration to aforesaid three eyewitnesses of the incident. While referring to the statement of one Chisti Moinmiya Kalumiya, she has submitted that earlier incident of dashing of two vehicles is clearly reflected from his statement. She has submitted that on reading of these statements, it transpires that the accused – Ramiz Mohamahadbhai Ghanchi who has been enlarged on bail by the Coordinate Bench was not present at the time of incident and, therefore, the ground of parity is not available to the present applicant. She has submitted that the present accused is prime accused and from the statements of the complainant as well as three eyewitnesses, the actual role is attributed to the present applicant. She has submitted that considering the affidavit filed by the original complainant and the fact narrated by the various witnesses, this Court may not exercise discretion under Section 439 of the Criminal Procedure Code and the applica