DHARMESHBHAI KIRTIKUMAR SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant who stands charged for the offence under section 307 of the Indian Penal Code ("the Code" for short) and 25(1)(B)(C) of the Arms Act has filed this application for bail under section 439 of the Code of Criminal Procedure. The learned Sessions Judge has rejected the application by observing that during the investigation, police found that the applicant has illicit relationship with the wife of the injured and to eliminate her husband (injured), the applicant hired contract killer (commonly known as giving of Sopari for killing somebody).

(2.) I have heard the learned advocates for the parties.

(3.) Learned advocate Shri Bhargav Bhatt appearing with learned advocate Shri Rajesh Deval for the applicant submitted that there is absolutely no evidence against the applicant to connect him with the alleged offence. Mr. Bhatt submitted that the applicant is involved in the offences on the basis of the statements of the co-accused which since not admissible in evidence cannot be relied against the applicant. Mr. Bhatt submitted that to connect the applicant with the alleged crime, the police has relied on the call details of mobile phones recovered from the wife of the injured and from the applicant. Mr. Bhatt submitted that the call details of the day of incident are indicating one way sending of SMS from mobile phone bearing No. 8758239076 allegedly of the applicant whereas no details of sending SMS or making of any call are found from the mobile phone recovered from the wife of the injured. Mr. Bhatt submitted that it is not possible to believe that it was physically possible for applicant to complete the chain of time as suggested in the FIR to reach near the house of the injured. Mr. Bhatt submitted that the mobile Phone No. 8758239076 is also not found registered in the name of the applicant but the same is found registered in the name of one Panalal Rabari. The police did not take any trouble to find out who was said Panalal Rabari but just to shortcut the investigation, it implicated the applicant because said mobile was recovered from the custody of the applicant. Mr. Bhatt submitted that the law does not permit either the police or the Court to use the statement of co-accused for arriving at conclusion of the involvement of the person in the offences. Mr. Bhatt submitted that such statements either recorded independently or in any panchanama, cannot be read in evidence and, therefore, based on any such statements, the applicant cannot be denied the bail especially when the applicant has been in jail for the last more than five months. Mr. Bhatt submitted that the injury allegedly received by the injured was simple. On the same day of incident within short time, he could lodge his complaint. Mr.Bhatt submitted that injury was on non vital part of the body and considering the fact that the coaccused rested at firing only one shot from revolver, it cannot be said that the offence under section 307 of the Code was made out against the applicant. Mr. Bhatt submitted that there is no direct evidence against the applicant for causing such bullet injury to the injured person. Mr. Bhatt submitted that the demonstration panchanama of the scene of offence allegedly shown at the instance of the applicant cannot be used against the applicant in view of section 25 of the Evidence Act. Mr. Bhatt submitted that leaving aside the panchanama drawn by the police and the call details relied on to implicate the applicant, the only thing which remains against the applicant is of alleged illicit relationship of the applicant with the wife of the injured but that by itself is no proof of the involvement of the applicant in the offences alleged in the FIR. Mr. Bhatt thus urged to exercise discretion under section 439 of the Code of Criminal Procedure in favour of the applicant. In support of his submissions, learned advocate Mr. Bhatt has relied on the following decisions: