VALAY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application has been filed under sec. 439 of the Code of Criminal Procedure for regular bail in connection with the FIR being I-C.R. No.11209041210943 of 2021 registered with Prantij Police Station, Sabarkantha for offences punishable under Sec. 302 , 323 , 324 , 504 , 506(2) and 114 of IPC.

(2.) Learned advocate on behalf of the applicant Mr. Pratik B. Barot referring to the cross FIR submitted that the applicant is neither denying the occurrence of the incident nor taking into consideration the counter facts in both the FIRs, the participation of the applicant along with other two persons is not disputed. Mr. Barot referring to the medical certificate of G.M.E.R.S General Hospital, Himmatnagar stated that the injured deceased was brought before this Hospital on 12/6/2021 and on 14/6/2021, the injured took the discharge against the medical advice. Concentrating on the medical certificate, Mr. Barot stated that the four injuries were sustained by him as per the observation by the medical officer of recovery period of injury No. 1, 2 and 3 being simple injuries was 7 to 10 days, while for injury No. 4, it was advised for 6 to 8 weeks with the specific note if it would be without any complication. Mr. Barot says that the injury is alleged to be inflicted by a sickle and against advice of the doctor, further he was taken to some other hospital but nothing has come on record as to what was the surgery done or what treatment was given to the deceased or whether the deceased was suffering from any other complications, and lastly on 18/6/2021, he was brought in Medistar Pvt. Hospital at Himmatnagar where he was shown to have brought dead. Mr. Barot stated that one of the certificate is of 16/6/2021 from one Dr. Kamlesh Patel who is M.S. Ortho, while there is nothing on record to suggest as to what had taken place between 14/6/2021 to 18/6/2021 where the Medistar Pvt. Hospital declared him as brought dead, and when no treatment was undertaken by Medistar Pvt. Hospital. Mr. Barot referring to the FIR lodged by the father of the present applicant submitted that it were the deceased and his family members, who had assaulted the father of the complainant and in retaliation, to protect his father he used force and during that process, the father of the applicant also got injured on the left side of his head above the ear at the hands of other side. Mr. Barot submitted that the contributory factor would be the intermediary time between 14/6/2021 to 18/6/2021 and nothing is on record as to show as to what had aggravated the condition of the deceased. Mr. Barot stated that taking these all facts into consideration it would be a question to determine as to how far the present applicant would be liable under Sec. 302 of IPC. It was, therefore, prayed that the present application may be allowed and the applicant herein may also be released on regular bail.

(3.) Mr. Pranav Trivedi, learned Additional Public Prosecutor, submitted that cross complaint is a defence, which has been created by the applicant and his father. The scuffle which was initiated, was at the instance of the present applicant and his father, who had stopped the deceased and others to remove the stones which they found were obstructing their Kanaji Tree and the deceased and his family members were fearing that the branches of the tree are required to be cut otherwise their house would be in danger and they were all the persons who abused the deceased and his family members and during the assault, husband of the complainant was pinned down and when the father of the deceased intervened to protect him, the present applicant inflicted blows near the left ear on the back-side of the head and on the right side of the back. Complainant also alleges that the father of the applicant had also beaten her husband with the sickle.