The court considered the lack of disclosure of the applicant's name for a considerable time, absence of T.I. Parade, and the absence of past record of the applicant in granting bail.

ORDER :

1. Heard learned Senior Counsel Mr.B.B. Naik, assisted by Mr.Sanjay Prajapati, learned counsel for and on behalf of applicant-accused, learned Senior Counsel Mr.J.M. Panchal assisted by Mr.Ekant Ahuja, for the original informant and Ms.Krina Calla, learned APP for the respondent-State.

2. This regular bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for short) by the applicant-accused in connection with C.R.No.11191005220281 of 2022, registered at Khadia Police Station, Ahmedabad, for the offences punishable under Sections 143, 144, 147, 148, 149, 201, 302 and 120B of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act.

3. According to the prosecution case, accused no.1-Montu @ Namdar Gandhi is the cousin brother of the complainant – Pawan Mukesh Gandhi. Accused no.1, married to sister of the complainant in the year 1992 which was not acceptable by the family members, as a result of which, there were inter-se family disputes. The father of the complainant had executed the Will in the year 2020, wherein sister of the complainant was not given any share in the property and therefore, accused no.1 and his wife were aggrieved by the Will executed by the father of the complainant. Deceased – Rakesh Mehta stood in the witness in the Will and was very much associated with the family of the complainant. Accused no.1 was also aggrieved by the relationship of the deceased with the complainant.

4. In the aforesaid facts, accused no.1 and his accomplices, hatched the criminal conspiracy to eliminate deceased Rakesh Mehta. In order to execute the criminal conspiracy, unlawful assembly formed on 08.06.2022 with a common object to kill the deceased. It is a case of the prosecution that on the day of the incident, when deceased and his friend Yogesh Joshi passing nearby the office of accused no.1, he was brutally assaulted by baseball bat. It is alleged that accused no.1 – Montu Gandhi and five to six other persons, being a member of unlawful assembly, assaulted the deceased, as a result of which, he succumbed to the injuries on the same day. The complaint came to be filed by the complainant Pawankumar Gandhi inter alia alleging that Montu Gandhi had assaulted the deceased and other persons, whose faces covered with the mask and handkerchiefs. His further statement was recorded on the next day, wherein name of accused nos.2 and 3 have been disclosed. Statements of Witnesses Yogesh Joshi and Josh Jugnu have also recorded, wherein names of accused nos.2 and 3 have been disclosed. It is to be noted that the statement of witness Josh Jugnu, under Section 164 of the Code has been recorded where the identity of the present applicant accused has been disclosed.

5. In the aforesaid facts, the present applicant implicated as accused no.4 and he was arrested on 20.06.2022 and finally chargesheet came to be filed against in all four accused for the offences as referred above.

6. Mr.B.B. Naik, learned Senior Counsel for the applicant – accused urged that the applicant has been falsely implicated in the alleged offence as earlier he was working with accused no.1. It is in this context, he submitted that as per the prosecution case, the witnesses were unable to identify accused as their faces covered with the mask. He further submitted that none of the witnesses have identified the applicant accused and his name is not disclosed during the course of the prosecution and therefore, how the name of the present applicant in the alleged offence cropped up, as there is no iota of evidence to link the applicant in the alleged offence. He further submitted that when witnesses unable to identify the accused, the Investigating Agency failed to conduct T.I. Parade so as to strengthen the prosecution case, so far as the involvement of the applicant is concerned. He further submitted that nothing has been recovered or discovered from the applicant accused. The weapon