Allowed

Vijay Hargovanbhai Joshi(Shirvadiya) v. State of Gujarat

Gujarat HC12 Jul 2019CR.MA/5424/2019

Case brief

AI extract

What is this about?

In a criminal miscellaneous application for bail under Section 439 CrPC, the High Court of Gujarat allowed the application and granted regular bail to the accused. The Court relied on investigation flaws, contradictions in evidence, and the presence of an independent witness whose testimony did not identify the applicant to exercise its discretion in favor of bail.

What did the court decide?

The applicant was ordered to be released on regular bail by executing a personal bond of Rs. 10,000 with one surety of equal amount.

Vijay Hargovanbhai Joshi(Shirvadiya) Vs State… — Murder and Culpable Homicide | Gujarat HC (2019)

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R/CR.MA/5424/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 5424 of 2019

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========================================================== VIJAY HARGOVANBHAI JOSHI(SHIRVADIYA)

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Versus

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STATE OF GUJARAT

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==========================================================

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Appearance:

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MR YS LAKHANI, SENIOR ADVOCATE WITH MR ANUJ K TRIVEDI(6251) for the Applicant(s) No. 1

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MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 12/07/2019 ORAL ORDER

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1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R. No.I-58 of 2018 registered with Palanpur West City Police Station, District Banaskantha, for offence under Sections 302, 307, 386, 389 and 34 of the Indian Penal Code and Sections 25(1-B)A and 30 of the Arms Act.

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2. Learned advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

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3. Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

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4. Learned advocates appearing on behalf of the respective parties do not press for further

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Page 1 of 5

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R/CR.MA/5424/2019 ORDER

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reasoned order.

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5.Having heard the learned advocates for the
parties and perusing the material placed on
record and taking into consideration the facts
of the case, nature of allegations, gravity of
offences, role attributed to the accused,
without discussing the evidence in detail, this
Court is of the opinion that this is a fit case
to exercise the discretion and enlarge the
applicant on regular bail.

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6. This Court has also considered the following aspects:

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(a) the applicant is in Jail since 18.10.2018; (b) investigation is concluded and charge-sheet is filed;

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(c)this Court has considered the statement
given by the independent witness, namely,
Vaghuram Manubhai Joshi, which was recorded on
03.06.2018. Copy of the same is produced at
Page-31 of the compilation. This independent
witness has given different story, which is
inconsistent with the story put forward by the
first informant as well as discovery of stick,
spectacles and handkerchief at the place of
incident has not been explained in the
investigation;

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(d)mobile number, which is referred in the
papers of charge-sheet, belongs to one Somnath
Nayak. However, the statement of the said person
is not recorded by the Investigating Agency. No
call details are collected;

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Page 2 of 5

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R/CR.MA/5424/2019 ORDER

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(e)from the material placed on record and from
the investigation papers, it is revealed that
neither the first informant nor the witnesses
Narsinh Agarwal, Jayesh Thakkar or the deceased
knew the applicant by name or face;

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(f)it is specifically contended by the learned
Senior Advocate appearing for the applicant that
the applicant is a well-known businessman in the
area, who is falsely implicated in the incident
in question;

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(g)it is also relevant to note that
independent witness Vaghuram Joshi though stated
in his statement that he can identify the
assailant, he failed to identify the applicant
in Test Identification Parade;
(h)the applicant had no motive to cause any
injury to the first informant or to the
deceased;
(i)it is contended by the learned Senior
Advocate Mr.Lakhani appearing for the applicant
that direction of wound to the deceased is from
clavicle on the left side going downwards left
to right and the exit wound on right side is
behind the lung, does not match with the say of
the prosecution. It is also contended that as
per the Panchnama of place of incident, no
bullet or bullet-casing was found at the place
of offence, though it is alleged that more than
four rounds were fired. It is also contended
that no bullet has been found from the body of
the deceased;

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Page 3 of 5

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R/CR.MA/5424/2019 ORDER

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(j)even as per the case of the prosecution,
the applicant has neither fired nor caused any
injury to anybody; and

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(k)looking to the aforesaid facts and
circumstances of the present case and in view of
the submissions canvassed by the learned Senior
Advocate appearing for the applicant, this Court
is inclined to exercise discretion in favour of
the applicant.

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7. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation , reported in ( 2012) 1 SCC 40 .

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8.Hence, the present application is allowed. The
applicant is ordered to be released on regular
bail in connection with FIR being C.R. No.I-58
of 2018 registered with Palanpur West City
Police Station, District Banaskantha, on executing
a personal bond of Rs.10,000/- (Rupees Ten
Thousand only) with one surety of the like
amount to the satisfaction of the trial Court
and subject to the conditions that he shall;

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[a] not take undue advantage of liberty or misuse liberty;

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[b] not act in a manner injurious to the interest of the prosecution;

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[c] surrender passport, if any, to the lower court within a week;

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[d] not leave India without prior permission of the concerned Trial Court;

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[e] mark presence before the concerned

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Page 4 of 5

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R/CR.MA/5424/2019 ORDER

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Police Station between 1st to 10th day of
every English calendar month for a
period of six months between 11:00 a.m.
and 2:00 p.m.;

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[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

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9. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

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10. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

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11. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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(VIPUL M. PANCHOLI, J)

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piyush

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Vijay Hargovanbhai Joshi(Shirvadiya) v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Vijay Hargovanbhai Joshi(Shirvadiya) v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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