MUKESHBHAI JIVRAMBHAI SORATHIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application has been filed by the applicant-accused for grant of regular bail under Section 439 of the Code of Criminal Procedure, 1973, which is a successive bail application.

(2.) The applicant-accused is charged with having committed offences under Sections 143, 147, 148, 323 and 302 of the Indian Penal Code, 1860 as well as under Section 135 of the Bombay Police Act, 1951 for which F.I.R. being I-C.R. No.147 of 2008 has been registered with Rapar Police Station, Dist.Kutch.

(3.) Learned Senior Counsel Mr.B.B.Naik appearing with learned advocate Mr.Girish K. Patel submitted that the trial has not proceeded after March, 2010 and the last witness was examined on 09.03.2010. He, therefore, submitted that considering the material placed on record and more particularly medical evidence, at the most the applicant could be convicted for the offence under Section 304 Part-II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. For that purpose, he referred to the testimony of Dr.Kaushalyandrakumar, PW-17, Exh.70, and submitted that because of alcohol the deceased could have expired when he fell down from the motorcycle. He referred to the cross of Dr.Kaushalyandrakumar. He also referred to testimony of Dr.Vishal Thakkar, PW-16, Ex.67 and submitted that he has also stated in his cross-examination that such injury could be caused if a person falls down. Learned Senior Counsel Mr.Naik, therefore, submitted that the case of the defence is that the deceased fell down from the motorcycle under the influence of alcohol and, therefore, at least the present application for releasing him on bail may be considered. He also referred to the F.S.L. report and submitted that it confirms that the deceased had consumed alcohol in quantity. Learned senior counsel Mr.Naik also relied upon the material evidence and submitted that history recorded by the doctor refers assault by two persons whereas subsequently in the F.I.R. there is reference of four persons. He further emphasised that the complaint/information has been registered on 08.12.2008 at 14:30 hrs. whereas the alleged incident is sought to have occurred on 07.12.2008 at 23:30 hrs. Learned Senior Counsel Mr.Naik strenuously submitted that after proper deliberation the complaint has been registered and he submitted that since the trial, which is started has not proceeded further the present application may be allowed.