RAMIZ MOHAMAHADBHAI GHANCHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with an FIR being C.R.No. I-? 165 of 2019 registered with Kadi Police Station, District: Mehsana for the offence punishable under Sections 302 , 307 , 364 , 365 , 342 , 120(b) and 34 of the Indian Penal Code and Section 135 of the G.P. Act.

(2.) Heard learned advocate for the applicant and learned APP for the respondent State.

(3.) It was submitted by learned advocate for the applicant that applicant is absolutely innocent and has not committed any offence as alleged. That the complaint filed against the applicant is manifestly attended with malafide intention of harassing the applicant who has not indulged into giving contract to any accused to kill the deceased Sharifkhan and merely on conjectures and surmises and upon false accusations levelled by the complainant and the other witnesses who are all planted to script a false story of contract killing at the behest of applicant. The documentary evidence in the form of the photogrpahs taken from the CCTV footage from Bhagyodaya Hospital clearly discloses one fact that the complainant namely Altafmiya, Munaf Akbarmiya and Imran Amirmiya Pathan are not the eye witnesses to the alleged assault nor they were even instrumental in taking the deceased to the hospital as can be clearly noticed from the papers of the charge-?sheet filed in the case of the co-?accused as well as on the basis of the statement of three persons who were instrumental in lifting the deceased after he was assaulted and he was moved to the Bhagyodaya Hospital in an auto rickshaw. Therefore, the genesis of the entire prosecution story being based on utter falsehood has been made the subject matter of the prosecution of the application to implicate the applicant who is absolutely innocent and is not in any manner connected with the commission of the alleged offence. That the documentary evidence which has been produced by the applicant to support his case that the applicant was not even present in the State of Gujarat is by itself conclusive and cannot be doubted and is sufficient to indicate that the applicant is not in any manner connected with the commission of the alleged offence. The story put forth by the prosecution is that one accused Malek Irfan @ Giri Salimbhai was heard by the complainant saying that as deceased Sarifkhan had eloped with a girl from Ghanchi Community and married her so he should be killed is also without any basis because the marriage of Sharfikhan with the girl of the Ghanchi Community was solemnized in the year 2012 and if at all it would be case of honour killing that it is improbable to accept that one would wait for seven years to realise that honour. Moreover, the applicant is also not in any manner related with the wife of the deceased except for the fact that they belong to Ghanchi community. Therefore, it clearly transpires that the prosecution has tried to create a story by joining bits and pieces to drag the applicant by force and by use of police machinery in the commission of alleged offence. That say of the complainant and the witnesses is examined that it is the case of prosecution that applicant had ordered the killing of the deceased and this fact was over heard by the deceased himself as well as the complainant and the other witnesses but when neither the complainant nor the other witnesses have turned out to be eye witnesses as claimed by them during investigation their version having been proved to be not only doubtful but absolutely false cannot be believed. It is clearly borne out that the complainant namely Altafmiya Aiyubmiya Sheikh was neither present at the Chabutara Chowk/ Kadi Square nor is he the eye witness to the alleged incident. In fact, from the papers of charge-?sheet, itself it becomes absolutely clear that the persons who were actual eye witnesses namely Ashraf @ Kati, Sarfaraz @ Bando, and Inayat @ Inno reached the Chabutara Chowk/Kadio Square upon hearing hue and cry and commotion and saw the deceased lying in an injured condition and from there, they stopped an auto rickshaw which was driven by one Miftabhai Amirmiya Akbarali Saiyed and took the deceased who was alive at that time, in the auto rickshaw and got the deceased admitted in the hospital. The CCTV footages which have been produced of the Bhagyodaya hospital corroborate the say of the applicant that the real eye wittinesses and not the complainant who is not the eye witness took the deceased to the hospital from Chabutara Chowk and got him admitted and the further evidence produced in the form of CCTV footage indicates that the complainant and the other persons who have planted themselves to be the eye witnesses were never the eye witnesses. On the other hand, if the version of the real eye witnesses is believed by this Court then it would make it absolutely clear that the complainant was not the person who was even present at the Chabutra Chowk and if the complainant's presence is not believed at Chabutara Chowk and if it is also not believed that the complainant took the deceased to the hospital, then the entire cased of the prosecution would crumble like a pack of cards and therefore, it would clearly reveal that the story which is made up by the complainant and other witnesses is absolutely false and hence, the applicant is absolutely innocent.