The court established that the gravity of allegations and the sufficiency of circumstantial evidence are critical factors in bail considerations under Section 439 Cr.P.C.

ORDER

1. The present bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 92/2021 registered at Police Station Behror, District Alwar (Police District Bhiwadi) for the offence under Section(s) 365 & 379 of IPC and later on for the offence under Section(s) 302, 365, 379, 120B & 34 of IPC.

2. Learned counsel for the petitioner contended that it is a case of circumstantial evidence and the charge sheet is bereft of any evidence to connect him with the alleged offence. Drawing attention of this Court towards the statements of Narendra and Mahendra recorded under Section 161 Cr.P.C, he contended that they have not last seen the deceased in the company of the accused-petitioner; but, have seen some unidentified persons taking his goats. Learned counsel submitted that the petitioner came to be arrested on 06.02.2021; whereas, a goat was recovered allegedly at his instance on 15.02.2021 i.e. after 9 days from the date of arrest which raises serious doubt about its veracity. He submitted that no charge sheet has been filed against accused persons named in the FIR merely on the basis of information furnished by one of the co-accused on the notice given to him under Section 133 of Motor Vehicles Act, 1988. Learned counsel submitted that the prosecution witnesses refer involvement of the vehicle on the basis of CCTV footage; but, the same is not part of the charge sheet. He submitted that as per the prosecution story, Bhagirath died before 1-1.30 PM on 01.02.2021; whereas, the postmortem report of the deceased conducted on 04.02.2021 at about 3 PM reflects duration of death within 72 hours which casts a doubt on the prosecution story as to time of his death. Lastly, he submitted that test identification parade of the petitioner stands vitiated as it was conducted by the Sub-Jailor in violation of the provision contained under the Rajasthan Police Rules, 1965. He submitted that the petitioner is in custody since 06.02.2021, charge sheet has been filed and prayed for his release on bail.

3. Per contra, learned Public Prosecutor assisted by learned counsel for the complainant submitted that from the testimony of the prosecution witnesses especially Narendra and Mahendra, it is apparent that the petitioner was involved in murder of Bhagirath. They submitted that the petitioner has been identified by the witnesses who have last seen him taking away goats belonging to the deceased. They, therefore, prayed for rejection of the bail application.

4. Taking into consideration the submissions advanced by learned counsels for the respective parties, the nature and gravity of allegation against the petitioner, the material contained in the charge sheet especially the statements of prosecution witnesses Narendra and Mahendra recorded under Section 161 Cr.P.C, recovery of incriminating material at his behest and his identification by the prosecution witnesses in the test identification parade, this Court does not deem it just and proper to extend the benefit of bail to the petitioner. In so far as contentions raised by the learned counsel for the petitioner with regard to delay in recovery of a goat, absence of CCTV footage, the allegation of murder of Bhagirath prior to 1-1.30 PM on 01.02.2021 not being substantiated by the postmortem report, are concerned, the same cannot be appreciated by this Court at the stage of consideration of the bail application and which may be considered by the learned trial Court at the appropriate stage.

5. In view of nature and gravity of allegation against the petitioner and the material contained in the charge sheet; but, without expressing any opinion on the merits of the case, this Court is not inclined to enlarge the petitioner on bail.

6. Accordingly, the bail application is dismissed.