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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
KULDEEP MATHUR, J.
Subhash @ Kalu, S/o. Shri Leelu Ram - Petitioner
Versus
State Of Rajasthan, Through PP. and Anr. - Respondents
S.B. Criminal Miscellaneous Bail Application No. 15508 Of 2023
Decided On : 10-01-2024
Bail - Criminal Law - Sections 302, 364, 34 IPC - 439 Cr.P.C.
Fact of the Case:
The petitioner filed for bail under Section 439 Cr.P.C. in connection with F.I.R. No.478/2021, for offences under Sections 302, 364, 34 IPC. The petitioner argued that they were falsely implicated and that the prosecution's case was based on circumstantial evidence.
Finding of the Court:
The court found that the star prosecution witness did not support the prosecution story and turned hostile. The court also noted that the case of the petitioner was not worse than that of the co-accused persons who had already been enlarged on bail.
Issues: The issues revolved around the sufficiency of evidence, the credibility of the prosecution's case based on circumstantial evidence, and the comparison of the petitioner's case with that of the co-accused persons who had been granted bail.
Ratio Decidendi: The court's decision was influenced by the lack of support from the star prosecution witness, the absence of incriminating evidence exclusively within the knowledge of the accused-petitioners, and the comparison with the co-accused persons who had been granted bail.
Final Decision: The bail application under Section 439 Cr.P.C. was allowed, and the accused-petitioner was ordered to be released on bail.
ORDER :
1. This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.478/2021, registered at P.S. Hanumangarh Town, District Hanumangarh for offences under Sections 302, 364, 34 IPC.
2. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
3. Learned counsel for the petitioner submitted that the petitioner has not been named as suspect in the FIR. Learned counsel further submitted that there is no eye witness of the incident and entire prosecution story is based on circumstantial evidence and the statements of last seen witness. Drawing attention of the Court towards the statements of last seen witness namely Jaswant @ Sadam recorded before the competent criminal court as P.W.-1, learned counsel for the petitioner submitted that the star witness of the case has turned hostile and has not supported the story of prosecution, therefore the prosecution is controverting itself on the circumstance of last seen.
4. Learned counsel for the petitioner submitted that co-accused namely Anil @ Sethi and Mukesh Kumar Tarad have already been enlarged on bail by this Court vide order dated 02.08.2023 in Criminal Misc. II Bail Application Nos.8195/2023 and 7532/2023. The order dated 02.08.2023 passed by this Court is reproduced hereinbelow:-
The first bail applications of the petitioners was dismissed by a coordinate Bench of this Court vide order dated 14.07.2022.
The facts in a nutshell are that an FIR No.478/2021 was filed by the complainant (brother of the deceased) stating inter alia that his brother (deceased) Mukesh did not return home in the night of 07.09.2021. During the search made by family members of the deceased, his dead body was found near Suratgarh Branch Canal. During inspection of the body, it was found that one hand and one leg of the dead body was broken and injuries were also seen on the dead body. In the FIR, it was also stated that a cloth was found stuffed into the mouth of the deceased.
As per FIR, on viewing images of the footage of CCTV installed at the shop of one Madan Taran, the deceased was seen on the motorcycle of Jaswant alias Sadam son of Jagdish and one unidentified person. The complainant suspected that his brother had previous animosity with Ajay Meghwal, son of Raju , Anil Mirasi, son of Brijlal, Sheshkaran, son of Brahmdev, Mukesh Jhinja, Siddharth Jhinja and Surendra Jhinja and therefore, these persons might be involved in the killing of deceased- Mukesh.
The investigating agency during the course of investigation, arrested the present petitioners and other co-accused persons in connection with the murder of the deceased. As per prosecution story, deceased was having illicit relations with the daughter of co-accused Subhash alias Kalu. The deceased was also trying to develop friendship with the wife of petitioner- Anil alias Sethi. Owing to these facts, petitioner- Anil alias Sethi, co-accused Subhash alias Kalu, co-accused ‘A’ in a pre-planned manner took deceased- Mukesh to Suratgarh Branch Canal, where petitioner- Mukesh Tarad also joined them and the petitioners along with co-accused persons brutally assaulted and murdered deceased- Mukesh.
As per prosecution, Jaswant alias Sadam had seen deceased- Mukesh being taken away by petitioner-Anil alias Sethi, Subhash alias Kalu, co-accused ‘A’ and informed petitioner- Mukesh Tarad about the deceased being taken away by accused persons, upon which, Mukesh Tarad joined other accused persons. As per prosecution, Jaswant alias Sadam, though did not participate in the killing of deceased- Mukesh but had full information about the crime being comm
The court's decision was based on the lack of incriminating evidence exclusively within the knowledge of the accused-petitioners and the lack of support from the star prosecution witness.
The absence of eyewitnesses and lack of evidence against the accused justified the grant of bail, emphasizing the principle of preventing unnecessary detention without risk of influencing witnesses.
The presumption of innocence at the pre-conviction stage and the need for a complete chain of evidence in cases involving circumstantial evidence are crucial legal principles established in the judgm....
The grant of bail is justified when material prosecution witnesses turn hostile, indicating insufficient evidence for conviction.
In cases where accused persons are alleged to have shared a common intention under Section 149 of IPC, individual roles may not be required to be considered for granting bail.
The court established that the credibility of witness testimony and the presence of corroborative evidence are critical factors in determining bail applications in serious criminal cases.
Bail granted due to lack of evidence and co-accused released.
Bail can be granted when witnesses turn hostile and cannot identify the accused, especially when the trial is expected to be lengthy.
Bail is a fundamental right at the pre-conviction stage, and the burden lies on the prosecution to provide compelling reasons for denial, particularly when witness credibility is in question.
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