- (1.)This Application has been preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the FIR bearing CR No. I - 16 of 2015 registered with Vatva Police Station, Ahmedabad for the offences punishable under Sections 307, 302, 467, 201, 120B and 34 of the IPC and under Section 135(1) of G.P.Act and under Section 25(1)(C) of the Arms Act.
(2.)Heard Y.M.Thakkar, learned counsel for the applicant. He has contended that applicant has not committed the offence in question. He has contended that the charge­sheet is filed on 6.5.2015. He has contended that in fact deceased himself described the incident and his dying declaration is also recorded. In the same dying declaration deceased has declared his suspicion about role of the applicant but he did not name the applicant as assailant. It has been further contended that deceased died after 11 days of the injury. Admittedly none has seen the incident accept the deceased himself who has not named the applicant as assailant. It is further contended that there was civil dispute going on between the parties wherein for more than five years the applicant has obtained stay from the Civil Court. Since in the Civil Court there is order in favour of the applicant, therefore there is no question of assailing other side. It is further contended that the story of the prosecution of hatching conspiracy pan­gallawala is improbable. It is further contended by the learned counsel for the applicant that so far as allegations made in the present case for criminal conspiracy is concerned, there must be some agreement taking place between conspirator and co­conspirator. He has read charge­sheet papers and contended that in the present case at which place meeting took place that is also not disclosed through the cogent evidence. He has contended that when main ingredients of Section 120B of the Penal Code are not attracted through oral or documentary evidence of the prosecution case then question regarding conspiracy has taken place that cannot be considered prima facie. He has contended that applicant will be available for interrogation and will remain present during the trial before the trial Court. The applicant will not tamper with the evidence. He has prayed to grant bail to present applicant.
(3.)Heard Mr.H.S.Soni, learned APP for the respondent State. He has read facts of the prosecution case and complaint and contended that so far as recovery/discovery panchnamas are concerned, prima facie case of circumstantial evidence is made out against the present applicant. He has further read injury certificate and injury of the deceased and contended that cause of death is disclosed by the expert witness doctor. He has contended that animosity between the deceased and present applicant is also disclosed through statement of the witnesses as well as circumstantial evidence collected by the Investigating Agency. He has vehemently opposed the present application.