Point of Law : Grant of Bail looking at the nature of allegations made against the applicant in the FIR.

JUDGMENT :

1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with an FIR being C.R. No. I165 of 2019 registered with Kadi Police Station, District: Mehsana for the offence punishable under Sections 302, 307, 364, 365, 342, 120(b) and 34 of the Indian Penal Code read with Section 135 of the Gujarat Police Act.

2. Heard learned advocate for the applicant, learned advocate for the original complainant as well as learned APP for the respondent State.

3. It is submitted by learned advocate for the applicant that applicant is falsely involved in the offence by the prosecution and no specific overt act or role has been attributed to the applicant in the entire FIR. That in the chargesheet papers and during the investigation, except one set of the witnesses, who are created by the prosecution, it is alleged that when the accused persons were assaulting the victim, the applicant and one Irfan @ Gori got out of the Creta car and brought out the victim Sharifkhan from the Creta Car, and thereafter, the other accused assaulted the said Sharifkhan. It is further submitted that one of the main accused namely Malek Arbaz @ Babji Salimbhai Hamadbhai, who was alleged to be in possession of iron pipe, was ordered to be enlarged on regular bail by this Court (Coram: Hon'ble Dr. Justice A.P. Thaker) vide order dated 13.07.2021 in Criminal Misc. Application No.8912 of 2021. It is further submitted that against the order passed by this Court in Criminal Misc. Application No.8912 of 2021 releasing Malek Arbaz @ Babji Salimbhai Hamadbhai on bail, the prosecution approached the Hon'ble Apex Court challenging the said order, which was declined by the Hon'ble Apex Court and the order passed by the Coordinate Bench of this Court dated 13.07.2021 was confirmed. It is further submitted that the applicant being identifiably situated with the coaccused, who have been ordered to be enlarged on bail and having lesser role, so far as gravity is concerned, applicant should be enlarged on bail. It is further submitted that complainant claims to be an eye witness who has witnessed the assault along with two other bogus witnesses namely Imrankhan Amirkhan Pathan and Munafbhai Akbarbhai Khokhar, who are alleged to have taken the victim Sharikhan to the hospital alongwith the above named two persons in the auto rickshaw of Munafbhai Akbarbhai Khokhar. The CCTV footage collected from the Bhagyoday Hospital clearly falsifies the story of the complainant as well as other two witnesses, who are created by the prosecution. It is further submitted that statements of other witnesses, who are shown to be eye witnesses, have also not attributed any overt act to the applicant except that applicant, was having in his hand a wooden stick. That Malek Arbaz @ Babji Salimbhai Hamadbhai having a sword in his hand is already released on bail by this Court vide order dated 13.07.2021. Therefore, prayer made by the applicant requires to be considered by enlarging on bail by imposing suitable conditions. It is further submitted that in Criminal Misc. Application No.17901 of 2020, while enlarging the main accused on bail, this Court has observed that prima facie, the story put up by the eye witness is doubtful and this court has doubted the presence of the complainant who claims to be an eye witness of the entire incident. That applicant is in jail since considerable period, therefore also, prayer made by the applicant requires to be considered as allegations are general in nature and there is no specific role attributed to the present applicant even in the investigating papers. It is further submitted that as per the prosecution story, after being assaulted, deceased was taken to the Bhagyodaya Hospital, where doctor had examined the deceased and asked the family members to admit the deceased in a better equipped hospital and during the entire process, doctor has not taken to record the case history or ev