KIRAN 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 No. 11196026201657/2020 registered with Raopura Police Station, Vadodara City for offences punishable under Ss. 302 , 114 and 120B of IPC as well as Sec. 135 of the Gujarat Police Act.

(2.) Mr. Barejia, learned advocate for the applicant submits that no case under Sec. 307 of the IPC or any other sec. of causing grievous injury has been invoked in the present matter against the applicant and further states that the allegation, as per the charge- sheet, is that out of earlier enmity, under some criminal conspiracy, on 14/10/2020 in Central Jail Yard no.12, while the complainant - Mosinkhan Sharifkhan Pathan and the deceased Azharuddin @ Ajju Kaniyo Mohammad Sindhi were passing from barracks no.4 and 5, at that time, suddenly accused nos.1 and 3 of the charge-sheet, assaulted with the iron plate and gave a blow to the injured on the neck and it is stated that the complainant intervened, at that time, he also got injured and subsequently, Azharuddin Sindhi died. Mr. Barejia submits that the case, as per the prosecution witness, is that Sunil- accused no.1 had inflicted a blow with a blade on the neck of the deceased and therefore, that had led to his death, while no case, as per the charge-sheet, has been made out against the present applicant, except that of assault, where according to Mr. Barejia, there would not be any injury by 2 persons with a single blade on the neck of the deceased and the prosecution also does not attribute the injury to the present applicant. While no case has been made out against the applicant under Sec. 307 of the IPC or other allied Sec. or even as of assault, though the prosecution has tried to project the weapon as rusted knife, which was alleged to be found in one tracksuit pant, but the witnesses do not state of use of any such knife. Mr. Barejia states that the said knife is recovered from the co-accused - Sunil, but no weapon has been recovered from the present applicant-accused.

(3.) Mr. Hardik Mehta, learned APP for the respondent - State and Mr. Maulik Soni, learned advocate for the original complainant submit that it was a pre- planned attack because of earlier enmity and along with one co-accused, the conspiracy was hatched with an intention to kill the deceased as well as the complainant and it is submitted that the a knife was recovered from the co- accused, which leads to the act of conspiracy. Referring to the statements of the inmates and the police personnel at the jail premises, it is submitted that there are eye-witnesses to the incident who have corroborated the fact that the present applicant had also inflicted blows on the complainant and even the deceased and thus, urge to reject the present application.