IMPORTANT POINT
Strict compliance of Section 309 of Cr.P.C. should be ensured by Trial Judges, specially in sensitive cases like murder, abduction and rape.

ORDER

Subodh Abhyankar, J.—This is the applicant’s fourth bail application under Section 439 of Criminal Procedure Code, 1973. He is implicated in connection with Crime No.80/2019 registered at Police Station Heera Nagar, Indore District Indore (MP) for offence punishable under Sections 364-A and 120-B read with Section 34 of the Indian Penal Code, 1860. His first bail application Miscellaneous Criminal Case No.26253/2019 was dismissed on merits by this Court on 24.07.2019 whereas second bail application Miscellaneous Criminal Case No.17429/2020 was dismissed as withdrawn on 11.06.2020 with liberty to file fresh application along with Court statement the witnesses examined before the trial Court and third bail application, Miscellaneous Criminal Case No.20960/2020 was dismissed as withdrawn on 13.07.2020.

The applicant is in jail since 14.02.2019.

2. The applicant is arrested in connection with the aforesaid offence whereby a boy aged seven years was kidnapped for ransom.

3. Learned Senior Counsel for the applicant Shri P.K. Saxena has vehemently argued before this Court that the victim himself has not supported the case of the prosecution and has clearly deposed in his cross-examination that he has identified the accused persons as he was directed by the Police uncle and earlier also, he had deposed as per the dictates of the Police uncle, as he is afraid of Police.

4. Counsel has further submitted that even the independent witness PW-6 Jai Prakash has not supported the case of the prosecution.

5. Counsel for the respondent State, on the other hand has opposed the prayer.

6. Heard.

7. On due consideration of the submissions and on perusal of the case diary as also the deposition of the victim, this Court finds that so far as the examination-in-chief of PW-2 victim is concerned, he has clearly identified the accused persons, as the persons who had abducted him. However, after his examination-in-chief on 04.10.2019, his cross-examination was conducted after more than two months i.e. on 18.12.2019 and this time, he has not supported the case of the prosecution, denying his earlier statement on the ground that he is afraid of Police personnel and they had asked him to depose in a particular manner supporting the case of the prosecution.

8. It is also found that the other eye witness PW/6 Jaiprakash who was examined on 04.03.2021 and other independent witnesses have also not supported the case of the prosecution.

9. After careful examination of the material available on record, this Court is not inclined to accept the contention of the learned Senior Counsel and is not inclined to allow the bail application.

10. So far as the deposition of the victim in his cross-examination is concerned, apparently he has not supported the case of the prosecution however, he has affirmed his kidnapping by the accused persons by identifying them in his examination-in-chief, thus, in the considered opinion of this court, it is for the trial Court to examine the aforesaid aspect of the matter while passing the final judgment; as this Court cannot venture into appreciating the evidence at this stage.

11. This court had also called for the proceedings of the Trial court to see as to why after the victim child witness’s examination-in-chief on 04.10.2019, he was cross examined only on 18.12.2019 i.e. after more than two months, and it was found that on 04.10.2019 the examination could not be completed due to end of court hours and the case was fixed on 13.11.2019 i.e. after more than 39 days and there after on 13.11.2019 and 28.11.2019, the child witness remained absent and finally on 18.12.2019 he was cross-examined and took a somersault from his earlier story by denying everything. It is apparent that in the meantime, he was won over by the accused persons. At this juncture it would be necessary to refer to sub-section (1) of s.309 of Cr.P.C. which reads as under:-

“Section “S. 309 (1) In every inquiry or trial, the proceedings shall be h