The court held that a hostile eyewitness significantly undermines the prosecution's case, warranting bail despite other circumstantial evidence.

ORDER :

(DINESH MEHTA, J.)

1. The present second bail application has been filed by the applicant under Section 439 of the Cr.P.C. (Section 483 of Bhartiya Nagrik Suraksha Sanhita, 2023) seeking regular bail in connection with FIR No. 08/2023 registered at Police Station Chopasni Housing Board, Jodhpur for the offence under Section 302 of Indian Penal Code.

2. The first bail application being S.B. Cr. Misc. Bail Application No. 15572/2023 preferred by the applicant was dismissed as withdrawn on 20.12.2023.

3. Learned counsel for the applicant invited Court’s attention towards the backdrop facts and submitted that there is only one eyewitness, namely Ramji Manjhi (P.W.5), who during the investigation had stated that he had seen the present applicant killing the deceased (Shankar Manjhi) with the help of cement brick, however, he (eyewitness) has turned hostile, when he appeared in the witness box.

4. Learned counsel argued that since the only eyewitness has turned hostile, the prosecution case cannot be proved.

5. Learned Public Prosecutor on the other hand opposed the bail application by submitting that the brick with the help of which the deceased was killed, has been recovered at the instance of the applicant in furtherance of information given by him under section 27 of the Indian Evidence Act,1872. He argued that unless the FSL report is examined, no final conclusion can be recorded with regard to applicant’s involvement.

6. Heard learned counsel for the parties and perused the record.

7. On perusal of the charge-sheet and the case of the prosecution, it is clear that it was Ramji Manjhi (P.W.5), who was present at the time of incident. The charge-sheet has been filed essentially on the basis of his testimony; all other witnesses have arrived at the spot of incidence, at later point of time.

8. Since the sole eyewitness has turned hostile, this Court is of the view that the applicant, who is behind the bars since 04.01.2023 is entitled to be enlarged on bail, regardless of pendency of forensic examination of the cement brick, which has been recovered at the instance of the applicant. Because, even if the FSL report shows the presence of blood of the deceased, the same would be hardly of any relevance, particularly when the sole eyewitness has turned hostile and no other incriminating evidence has been brought to Court's notice.

9. Consequently, this second bail application filed under Section 439 of the Cr.P.C. (Section 483 of Bhartiya Nagrik Suraksha Sanhita, 2023) is allowed. The applicant Avdesh Manji S/o Shri Tulsi arrested in connection with the FIR No. 08/2023 registered at Police Station Chopasni Housing Board, Jodhpur shall be released on bail on his furnishing personal bond in the sum of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the trial Court.

10. Applicant shall be required to appear before that Court on all dates of hearing and as and when called upon to do so.

11. 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.