The court granted bail based on the absence of recovery from the applicant and inconsistencies in the dying declaration, emphasizing the need for prima facie evidence in bail considerations.

Order :

1. The present bail application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the applicant, who is in custody in connection with the FIR No.810/2023 registered at Police Station Hanumangarh Town, District Hanumangarh for the offences punishable under Sections 302, 365, 342, 341, 323, 506, 504 and 34 of the Indian Penal Code.

2. The first bail application (S.B. Criminal Misc. Bail Application No.1070/2024) of the present applicant has been dismissed as withdrawn on 01.02.2024 with a liberty to file afresh after recording of the statements of eye witnesses namely, Abdul Munaf and Jumme Khan. Now, the statements of the said eye witnesses have been recorded.

3. Learned counsel for the applicant argued that the applicant had been falsely implicated by the prosecution, simply because, he hailed from family of Sattar Khan.

4. He further argued that the purported dying declaration of the deceased mentioned that the applicant had a ‘Kapa’ in his hand, whereas there is no injury of sharp weapon as is evident from the post-mortem report and that no recovery has been effected from the applicant.

5. Learned Public Prosecutor opposed the bail application by submitting that in the dying declaration, the deceased has specifically named the applicant and, simply because, there is discrepancy in the weapon used by the applicant (Kapa), it cannot be said that he was not involved.

6. It was argued by learned Public Prosecutor that a dying declaration should be given highest credence. He added that when a person is on the verge of death, possibly due to his medical condition, he can get confused about the weapon which was used to commit the offence.

7. Learned counsel for the complainant vehemently opposed the bail application.

8. Learned counsel for the applicant in rejoinder submitted that the incident took place in Lakhuwali village and its distance from Hanumangarh is only 24 kms, hence, it was incumbent upon the investigating officer to have called Judicial Magistrate for recording of the statement of the deceased.

9. Heard learned counsel for the parties and perused the material available on record.

10. The Investigating Officer cum Station House Officer present in the Court submitted that the condition of the deceased was deteriorating, hence, he thought that by the time Magistrate will be contacted and brought, it will be too late and therefore, he proceeded to record the dying declaration himself.

11. Be that as it may.

12. Since no recovery has been made from the applicant or at his instance, not even a lathi, this Court is of the view that the applicant who is behind bars since 18.11.2023 is entitled to be enlarged on bail.

13. Consequently, the present second bail application filed under Section 439 of the Code of Criminal Procedure is allowed. It is ordered that the applicant – Mohammed Ahmed @ Lala S/o Lt. Shri Khushi Mohammed arrested in connection with the FIR No.810/2023 registered at Police Station Hanumangarh Town, District Hanumangarh shall be released on bail; provided he executes a personal bond in the sum of ₹50,000/- and two sureties of ₹25,000/- each to the satisfaction of the learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.

14. Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall however, not come in the way of the trial Court to take independent view of the matter, based on ocular and oral evidence, while finally deciding the case.