Bail may be granted under Section 439 Cr.P.C. considering prolonged custody and lack of sufficient evidence linking the accused to the crime.

Order

07/11/2024

1. This application for bail under Section 439 Cr.P.C . (483 BNSS) has been filed by the petitioner who has been arrested in connection with F.I.R. No.76/2020, registered at Police Station Jhallara, District Udaipur, for offences under Sections 302, 201 & 404/34 of IPC.

2. As per the prosecution, the petitioner alongwith co-accused- Mahendra had murdered the deceased- Jhamku Bai on 24.07.2020 looted the gold and silver ornaments worn by her and disposed of her dead body in a plastic sack near road from Nokhli to Sameda. 3. Learned counsel for the petitioner contended that that the petitioner has been falsely implicated in the present case. Learned counsel submitted that there is no eye-witness of the alleged incident and the petitioner has been implicated in the present case solely on the basis of the statements of the last scene eye witnesses namely Vikram and Meena. It was further contended that there is nothing on record to establish the motive against the petitioner to commit the alleged crime. The recovery of the duppatta (odhni) made at the instance of the petitioner is not sufficient to establish her complicity in the present case, particularly, when the ornaments of the deceased- Jhamku Bai have been recovered from the co-accused- Mahendra.

4. Learned counsel for the petitioner further submitted that the petitioner is in judicial custody since 26.07.2020 and till date, out of total 27 cited prosecution witnesses, statements of only 8 cited prosecution witnesses have been recorded before the competent criminal Court. It was contended that there is nothing on record to show that the delay in trial is attributable to the petitioner. It was urged that keeping in view the prolonged period of custody suffered by the petitioner who is a woman, her case requires a sympathetic consideration for bail by virtue of Section 437 of Cr.P.C ..

5. Lastly, learned counsel for the petitioner submitted that since the petitioner is in judicial judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.

6. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that sufficient material in the form of statements of the last scene witnesses are available on record to establish involvement of the petitioner in commission of the alleged crime. Learned Public Prosecutor further submitted that looking to the seriousness of the allegations levelled against the present petitioner and particularly the fact that the statements of the material prosecution witnesses viz. the last scene witnesses have yet not been recorded before the competent Criminal Court, it would not be proper to enlarge the petitioner on bail.

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

8. Having considered the rival submissions, facts and circumstances of the case and after perusing the various order sheets of the competent criminal Court, this Court prima facie finds that petitioner is a woman and is in judicial custody since 26.07.2020. This Court prima facie does not find any material indicating that the delay in trial is attributable to the present petitioner or that she has intentionally delayed the trial. Therefore, keeping in view that prolonged period of custody suffered by the petitioner, so also the provisos to Section 437 of the Cr.P.C ., this Court is of the opinion that the petitioner deserves to be released on bail. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

9. Consequently, the bail application under Section 439 Cr.P.C . (483 BNSS) is allowed. It is ordered that the accused-petitioner Seema W/o Shri Mahendra arrested in connection with F.I.R. No.76/2020, registered at Police Station Jhallara, District Udaipur, shall be released on bail, if not wanted in any other case, pro