The exercise of discretion in granting regular bail based on the lack of specific evidence and the nature of the allegations.

ORDER :

1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being C.R. No.11191045202147 of 2020 registered with Sola High Court Police Station, Ahmedabad for offences punishable under sections 143, 144, 147, 148, 149, 149, 449, 302, 323, 324, 396 and 427 of IPC and section 135(1) of the G.P. Act.

2. Mr. Arshad Shaikh, learned advocate for the applicant submitted that, the allegation by the prosecution is that the persons, who had gone to the deceased house had assaulted him with deadly weapon, which caused death.

2.1 Mr. Shaikh submits that no role has been alleged in the FIR and prosecution story shows that the applicant has been falsely implicated. No specific overt act has been attributed to the applicant. Mr. Shaikh further submits that, as per the prosecution case, on earlier evening, the person had gathered for settlement to the quarrel and Viswajit Goswami, who had recorded the said meeting in his mobile phone, the video does not disclose the presence of the applicant. He submits that as per the prosecution case, the deceased - Pradip, was having talk with Anish Pande and Rahul and other boys, and it is alleged that they had slapped him on the face and thereafter Anish Pande and his friends went away, and according to Viswajit Goswami, he, deceased - Pradip and Akshay Bharwad, all three were resting on the upper floor of the house, and according to him early morning at about 5:30, someone knocked the door and when he went out, he saw four persons were out of the room having sword and other two having wooden logs, were trying to open the door, therefore he went inside the room to inform the deceased Pradip and the deceased came out of the house. He submits that according to Viswajit Goswami, Anish Pande had a knife, Rahul Sharma carried a wooden log, Anil Kori was yielded with a knife, Rahul Kori had a pipe, Nitin had wooden log, Amavas was carrying a sword and the present applicant is alleged of having the wooden log in his hand, and one of the friend of Amavas was also holding the sword.

2.2 Mr. Shaikh submitted that, as per the say of the Viswajit after entering into the house, all accused started beating him, Pradip and Akshay Bharwad. As per his say, all these people have given him blow with wooden log on his left hand and on his back and according to him, Akshay Bharwad and Kajal had no enmity with them, thus, they were asked to remove themselves from the place and accused by hitting them with wooden log had locked them in Kitchen. Mr. Shaikh submits that during this time, this witness alleges that he has received injuries on his head with the sword. Mr. Shaikh submits that he has not specified about the person, who has given blow with the wooden log, nor he has seen the incident of co-accused hitting deceased Pradip. He submits that, as per this witness, there is general allegation against all the accused that they had beaten Pradip to death, when they came out of the kitchen room had seen dead-body of Pradip on the floor and had not seen any of the accused at that time.

2.3 As per Mr. Shaikh, on the earlier evening also the present applicant was not present. Further the witness has not specified any injury received from the applicant with the wooden log, nor there is any clarity of the injury received by the deceased at the time when they had come out of the room; he had not seen any of the accused; thus, as per Mr. Shaikh the presence of the applicant is very much doubtful. Mr. Shaikh submits that the present applicant has been arrested from Ahmedabad. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.

3. Mr. Pranav Trivedi, learned Additional Public Prosecutor submits that, all had common intention to kill deceased - Pradip, and all were armed with knifes, sword and baton, and the complainant had also sustained injury with the sword. Mr. Trivedi submits that the appl