The court granted bail based on the absence of weapons, lack of witness intimidation, and the delay in trial not attributable to the petitioners.

Order :

1. This second application for bail under Section 439 Cr.P.C. has been filed by the petitioners who have been arrested in connection with F.I.R. No.72/2021 registered at Police Station Deshnok, Dist. Bikaner, for the offences under Section 148, Section 342 in alternative Sections 342/149, Section 365 in alternative Sections 365/149, Section 302 in alternative Sections 302/149 of IPC.

2. Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record.

3. Learned counsel for the petitioners submitted that the first bail application filed on behalf of the petitioners was dismissed by this Court vide order dated 17.05.2023 while giving them liberty to file a fresh bail application after the statements of eye- witnesses of the alleged incident which occurred on 19.06.2021, are recorded before the competent criminal Court.

4. Drawing attention of the Court towards the ordersheets of the competent criminal Court, learned counsel submitted that the statements of the eye-witness Mahaveer Prasad (PW.3) have already been recorded before the competent criminal Court however, despite issue of repeated summons and warrants another eye-witness of the incident namely Mattu Devi is not turning up before the Court for recording of her statements. It was contended that eye-witness of the incident is intentionally delaying the trial against the present petitioner.

5. On merits, learned counsel for the petitioner submitted that as per the prosecution, on 16.06.2021, the petitioner and the co- accused persons had brutally beaten the deceased after by tying him. The deceased succumbed to the injuries caused to him by the petitioner and the co-accused persons, while undergoing treatment the hospital.

6. Drawing attention of the Court towards the postmortem report of the deceased, it was contended by learned counsel for the petitioner that the cause of death of the deceased was multiple antemortem injuries caused to him. Learned counsel submitted that the nature of injuries mentioned in the postmortem report of the deceased indicates that they were caused by blunt weapons (lathis). Learned counsel submitted that the blunt weapons (lathis) containing blood stains have been recovered by the Investigating Agency in pursuance of the information divulged by the co-accused persons namely Sukharam and Prahlad, under Section 27 of the Indian Evidence Act. No weapon sharp/blunt has been recovered at the instance of the present petitioners.

7. Learned counsel submitted that since the petitioners were not carrying any weapons at the time of the alleged incident and the only allegation against them is of inflicting injuries upon the deceased with kicks and fists, they deserve to be enlarged on bail particularly when they are in judicial custody since 21.06.2021 and the trial of the case is not likely to be concluded in the near future.

8. Per contra, learned Public Prosecutor has vehemently opposed the bail application.

9. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the petitioners are in judicial custody since 21.06.2021; that the eye witness of the alleged incident Mattu Devi despite issue of repeated summons and warrants has not appeared before the competent criminal Court for getting her statements recorded; the delay in trial is not at all attributable to the present petitioners; as per the prosecution, at the time of the alleged incidents the petitioners were not carrying any sharp/blunt weapons; the blunt weapons (lathis) containing blood stains have been recovered at the instance of the co-accused persons. This Court also finds that the learned Public Prosecutor has not shown any apprehension of the petitioners influencing the material prosecution witnesses of the case or fleeing away from justice, in case, he is enlarged on bail. Thus, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bai