The absence of direct evidence linking the Applicant to the crime, alongside consideration of bail factors, justified the granting of bail.

ORDER :

(M. R. MENGDEY, J.)

1. The Applicant has filed this Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for enlarging the Applicant on Regular Bail in connection with FIR being C.R. No. 11205013240469 of 2024 registered with Mankuva Police Station, Kachchh.

2. Heard learned Advocate for the Applicant, learned APP for the Respondent – State and learned Advocate appearing on behalf of the Original Complainant.

3. Rule. Learned APP waives service of notice of Rule on behalf of the Respondent - State and learned Advocate Mr. Darshan M. Varandani waives service of notice of Rule on behalf of the Original Complainant.

4. Learned Advocate for the Applicant has submitted that the Applicant has good reputation in the society and no useful purpose would be served by keeping the applicant in jail for indefinite period. It is further contended that the applicant is ready and willing to abide by all the conditions that may be imposed by this Court if released on bail.

5. Per contra, learned APP has opposed the present application for grant of regular bail inter alia contending that the Applicant had actively participated in commission of the offence in question. The Applicant was present at the scene of offence with an iron pipe and had inflicted a blow with an iron pipe on the back of the deceased. Therefore, looking to the nature and gravity of offence, it is requested that, this Court may not exercise the discretion in favour of the applicant and the Application may be dismissed.

6. Learned Advocate appearing on behalf of the Original Complainant has also opposed the Application contending that the Applicant had assaulted the deceased and had inflicted a blow with an iron pipe on his back. Thus, the Application was very much part of an unlawful assembly in committing the offence in question. Therefore the individual role is not required to be seen. He therefore prayed to dismiss the present Application. He has sought to rely upon the judgment of the Hon'ble Apex Court in case of Manno Lal Jaiswal v. State of Uttar Pradesh & Anr. reported in (2002) 15 SCC 248.

7. Heard learned Advocates for the respective parties and perused the record. The investigation is over and charge sheet is filed. As per the case of the prosecution, the role attributed to the Applicant is to the effect that the Applicant had inflicted a blow with an iron pipe on the back side of the deceased. However, upon perusal of the Post-Mortem Report, there is no corresponding injury found on the body of the deceased which can be attributed to the blow which was alelgedly given by the present Applicant. The cause of death as per the PM Report is the stab injury which was caused to the deceased by the other co-accused and not by the present Applicant. Considering the aforesaid aspects, the Application deserves consideration. This court has also considered the following aspects:

(a) As per catena of decisions of Hon’ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.

(b) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.

(c) That the Applicant is in custody since 12.09.2024.

(d) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40.

8. Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant accused, the present Application deserves to be allowed and accordingly stands allowed. This Court has also gone through the FIR and police papers and also the earlier order passed by the learned Sessions Court whe