ISHWARBHAI DHRUVKUMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned APP waives service. Heard learned advocate for the applicant and learned APP for the respondent-State.

(2.) This application is filed seeking bail under Section 439 of the Code of Criminal Procedure, 1973, in respect of the offences punishable under Sections 302 and 504 of the Indian Penal Code for which FIR came to be registered at C.R. No. I- 49 of 2019 with Kalol Police Station.

(3.) On consideration of the rival submissions it appears that the nucleus of the offence lay-in the quarrel between the complainant and the accused on account of complainant objecting the accused meeting his fianc((THELAW))e. On the date of the offence the deceased allegedly entered the house of his fianc ((THELAW))e which enraged the accused who allegedly attacked the deceased with the kitchen knife on both the thigs. It is submitted by the learned counsel for the petitioner that the loss of life of the deceased was attributed primarily to the loss of blood and the death was not intended as the part of the body selected for assault was not the vital part. Prima facie, in absence of any other material it would be difficult to connect the petitioner to the offence under Section 302 of IPC. Of course the submission by the learned APP that such issue can only be decided at the time of trial cannot be altogether brushed aside; however the court would not be precluded from prima facie considering the nature of material, and if such nature of material prima facie indicates that the offence alleged in fact has not happened, the order of liberty of a person arrest can always be passed. The argument that in absence of change of circumstance the petitioner is not entitled to bail also must fail inasmuch as, after the chargesheet concededly the application is moved for the first time and therefore on the mere ground rejection of bail by the trial court, this court would not be precluded from considering the same on the basis of material placed before it. Considering the nature of accusation against the petitioner and in absence of an apprehension against the petitioner tampering with the evidence or threating the witnesses or fleeing from trial, the case for admitting the petitioner to bail is made out.