Insufficient evidence, particularly the lack of witness identification and recovery of the weapon, justified granting bail under Section 439 Cr.P.C.

ORDER :

Kuldeep Mathur, J. - 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.119/2020 registered at Police Station Falna, District Pali, for offences under Sections 143 , 302/115 and 120-B IPC.

2. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that the petitioner has been made accused in the present case with the allegation of conspiring to commit murder of the deceased Kaan Singh. It was urged that the deceased Kaan Singh was murdered by some unknown persons who came on motorcycle and fired gun shots at him while the deceased Kaan Singh and his friend Pradeep Singh were having tea at Shivam Tea Stall, near Khalsa Petrol Pump, Sanderao Road on 20.08.2020 at 11:30 am. During the course of investigation, it is revealed that co-accused Bharat Vaishnav was suspicious that his wife is having intimate relations with deceased and therefore, he engaged the present petitioner through another co-accused Ishwar Singh as a hit-man to kill Kaan Singh. Learned counsel submitted that as per investigating agency, a sum of Rs.10 lacs were allegedly paid to the present petitioner by co-accused Bharat Vaishnav for eliminating Kaan Singh.

3. Learned counsel submitted that co-accused Bharat Vaishnav who had engaged the petitioner through co-accused Ishwar Singh, has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 09.04.2021, passed in SB. CRLM II Bail application No. 3863/2021.

4. Learned counsel further submitted that the eye witnesses of the incident namely Pradeep Singh, Vijendra Singh, Pratap Singh and Abid, have not identified the assailants. In other words, the petitioner has not been identified by any of the eye witnesses. It was further urged that the weapon allegedly used for commission of crime has not been recovered. Lastly, it was urged that other co-accused person Juber Jae and Dharmesh who allegedly conducted recce of the deceased have already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 27.08.2021, passed in SBCRLMB Nos.9952/2021 and 10912/2021.

5. Learned counsel submitted the petitioner is in judicial custody; challan against the petitioner has been filed by the investigating agency before the competent criminal court and the trial is likely to take sufficiently long time therefore, the benefit of bail may be granted to the accused-petitioner.

6. Per contra, learned Public Prosecutor and learned counsel for the complainant have vehemently opposed the bail application. However, learned Public Prosecutor was not in position to refute the fact that the co-accused Bharat Singh who allegedly conspired with the other co-accused persons for committing murder of the deceased Kaan Singh, has already been enlarged on bail. Learned Public Prosecutor was also not in position to refute the fact that the other co-accused Juber Jae and Dharmesh have also been enlarged on bail by the co-ordinate Bench of this Court.

7. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the complainant. Perused the material available on record.

8. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that though the allegation of firing gun shots upon the deceased have been levelled against the present petitioner but he has not been identified by any of the eye-witnesses. This Court also prima facie finds that no recovery has been effected at the instance of present petitioner. This Court also prima facie finds that after detailed discussion, the main conspira