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Vinodkumar Alias Babasheth … vs State Of Gujarat on 11 September, 2018

R/CR.MA/14997/2018 ORDER




MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1


Date : 11/09/2018


1. Heard Mr. Ashish Dagli, learned advocate, for the
applicant and Mr. Mitesh Amin, learned Public Prosecutor, for
the respondent-State.

2. This application is filed under Section 439 of the Code of
Criminal Procedure for regular bail in connection with F.I.R.
registered at C.R. No. I – 3/2017 with Naliya Police Station,
Kutch for the offences punishable under Sections 354, 376,
365, 328, 342, 120B of the IPC as well as Sections 376(D),
376(2)(N), 506, 506(2).

3. It is briefly stated that on 25.01.2017 an FIR came to be
lodged contending that the father and mother of the
complainant have taken divorce and that the complainant
stayed with her mother. Thereafter, mother of the
complainant got re-married with one Mr. Hemant Punji and
complainant also got married and resides at Mumbai and that

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R/CR.MA/14997/2018 ORDER

as there are some disputes at her matrimonial home, she
came at Kothara with her mother and to get herself employed
and then she approached Mr. Bababhai and after two-three
days phone call was made to the mother of the complainant
and informed about her employment at Naliya and thereafter,
the complainant and her mother went to the shop of Mr.
Babahai and she got employment with one Mr. Shantibhai
Solanki on monthly salary of Rs. 5500/-. Since the festivals
like Diwali was approaching the complainant requested the
said Mr. Shantibhai to pay the half salary in advance to which
Mr. Shantibhai told her to come to his house and collect the
amount. Accordingly, complainant went there and after salary
was paid, she was offered some drink and thereafter, she
became unconscious and thereafter, the said Mr. Shantibhai
and other persons committed the offence and made video
recording of it. The complainant narrated the said incident to
Mr. Bababhai who also scolded her and tried to molest her
and committed rape upon her in shop. Hence, the FIR came to
be filed.

4. The applicant withdrawn the regular bail application
being Criminal Misc. Application (For Regular Bail) No. 29012
of 2017 on 18.12.2017 but a liberty was reserved in favour of
the applicant to move fresh bail application after recording of
deposition of the victim girl. Subsequently, deposition of the
victim girl came to be recorded and as she has turned hostile,
it prompted the applicant to file fresh bail application before
the learned Sessions Judge, who in turn rejected the bail
application on the ground that the applicant is rich and
politically influenced person and there are other witnesses yet
to be examined and therefore, the applicant may influence the

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R/CR.MA/14997/2018 ORDER

witnesses. Since the Court was not convinced with the
findings recorded by learned Sessions Judge ignoring the fact
that the victim girl turned hostile and also ignoring the fact as
to disown of statement of victim girl recorded under Section-
164 of the Criminal Procedure Code, 1973, therefore, this
Court remanded the matter back to the learned Sessions
Judge to decide the bail application afresh as per the order
dated 25.07.2018 passed in Criminal Misc. Application No.
13014 of 2018.

5. Despite the said order, the learned Sessions Judge
rejected the bail application of the applicant on the same
premise and in addition to it, it observed that the victim girl
obtained certain compensation amount from the State and
gave much emphasize on the said aspect for rejecting the bail
application and therefore, the applicant approached this Court
for enlargement on bail.

6. Learned advocate Mr. Ashish Dagli for the applicant
would contend that (i) the applicant is aged 70 years, (ii) is in
jail since 07.02.2017 (iii) is facing trial of gang rape case for
the incident that has occurred in the year 2015 for which FIR
came to be lodged only on 25.01.2017, (iv) no allegation of
any rape made by the victim girl in her statement recorded
under Section-164 of the Criminal Procedure Code, (v) no role
attributed in the alleged suicide note (Exh.100) and (vi)
absolutely turned hostile in her deposition recorded below
Exh.71 in Sessions Case No. 32 of 2017.

7. While opposing the bail application, learned Public
Prosecutor would submit that the Court cannot go into the

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R/CR.MA/14997/2018 ORDER

question of credibility and reliability of the witnesses put up
by the prosecution and therefore, as per the decision
rendered by Hon’ble Supreme Court in case of Satish Jaggi
v/s. State of Chhattisgarh reported in 2007 LawSuit(SC) 1454,
present application cannot be entertained at the midst of the

8. Having heard the submissions made at bar, it is a matter
of fact that the prosecutrix-victim examined before the
learned Trial Court below Exh.71 (P.W.No.1) in Sessions Case
No. 32 of 2017 completely turned hostile. Needless to say that
the applicant and other co-accused are facing serious charge
of gang rape, raping of P.W.No.1, the cross-examination
conducted at the hands of Special Prosecutor after obtaining
permission from the Court, nothing is stated/obtained from
the said P.W.No.1 so as to infer/believe the involvement of the
present applicant in the alleged offence of gang rape. Learned
Public Prosecutor could not lay his hand on any single
statement of her deposition so as to infer that the said
P.W.No.1 supports the prosecution case on material charge of
gang rape. Not only that the statement given by P.W.No.1
under Section 164 of the Criminal Procedure Code disowned
by her in her deposition. Considering the scope of Section-164
of Criminal Procedure Code as to its nature, scope, evidently
value, consequences of the author of the statement resiling
from its statement before the learned Sessions Judge, her
statement under Section-164 of Criminal Procedure Code
which is not a substantive piece of evidence loses its value. It
cannot be considered as prima-facie evidence to infer the
involvement of the present applicant in the alleged serious act
of gang rape as prosecutrix i.e. P.W.No.1 completely turned

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R/CR.MA/14997/2018 ORDER

hostile and disowned her statement recorded under Section-
164 of the Criminal Procedure Code.

9. To substantiate the charges prosecution produces
witness/witnesses. Sometimes, the witness supports the
prosecution, sometimes they turn against the prosecution. The
witness may lie as regards the prosecution version or they
may tell the real version of the case. They may depose in
favour of the prosecution or accused persons. But whatever
prosecution witness depose in the Court is the substantive
evidence and that will be the basis for the Court to appreciate
the prosecution case and also defense version.

10. No doubt, the alleged offence of gang rape is serious in
its nature and on top of it is sensitive. But the sensitiveness of
the case can never be the criteria at the time when the Court
considers the bail application as the Court is required and
duty bound to decide the matter strictly in accordance with
law without any further consideration. In substance, the
prosecution case upon hostile statement made by the
prosecutrix herself, it entitles the accused person to be
enlarged on bail pending trial when there is no any other
material pointed out by learned Public Prosecutor to keep the
applicant behind bar pending trial. Upon minute examination
of the deposition of the victim girl including cross-examination
at the hands of learned Special Prosecutor in charge of the
case nothing is found or at least to say that the prosecutrix
supports the prosecution case on material aspect of
allegation/charge framed against the applicant.

11. In addition to it, neither suicide note of prosecutrix
witness recovered and placed before the trial court below

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R/CR.MA/14997/2018 ORDER

Exh.61/22 (Exh.100) discloses involvement of the present
applicant or even otherwise, involvement of the applicant in
her statement recorded under Section-164 of the Criminal
Procedure Code except allegation of attempt to rape her and
lastly, FIR is filed after about two years of the alleged incident
of gang rape.

12. Combined effect of this factor is such that the applicant
has made out a prima-facie case to enlarge him on bail
pending trial and no any other submissions, contentions are
made by learned Public Prosecutor and therefore, present
petition deserves consideration. The case-law cited by learned
Public Prosecutor is kept in mind while considering the case
on hand.

13. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R. No. I –
3/2017 with Naliya Police Station, Kutch, on executing a bond
of Rs.20,000/-(Rupees Twenty Thousand only) with one surety
of the like amount to the satisfaction of the trial Court and
subject to the conditions that the applicant shall;

[a] not take undue advantage of liberty or misuse

[b] not act in a manner injurious to the interest of
the prosecution;

[c] not leave the territory of India without prior
permission of the Sessions Judge concerned;

[d] appear before the Investigation Officer
concerned, as and when required for
investigation purpose and attend the Court
concerned regularly;

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R/CR.MA/14997/2018 ORDER

[e] furnish the present address of residence along

with the proof to the I.O. concerned and also
to the Court at the time of execution of the
bond and shall not change the residence
without prior permission of Sessions Court

[f] surrender the passport, if any, within three
days from the date of his release before the
trial court;

14. The Competent Authority will release the applicant only
if the applicant is not required in connection with any other
offence for the time being. If breach of any of the above
conditions is committed, the Sessions Judge concerned will be
free to take appropriate action in the matter. Bail bond to be
executed before the lower court having jurisdiction to try the
case. It will be open for the concerned Court to delete, modify
and/or relax any of the above conditions in accordance with
law. At the trial, the trial court shall not be influenced by the
observations of preliminary nature, qua the evidence at this
stage, made by this Court while enlarging the applicant on

15. Rule is made absolute to the aforesaid extent. Direct
service is permitted.


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