JUDGMENT 1. - All the above bail applications arose out of the FIR 438/98 Police Station Kotwali, Sikar in which charge-sheet has been submitted in the court of Addi. Chief Judicial Magistrate, Sikar for the offence under sections 147, 148, 149, 323, 324, 325, 326, 427, 395, 364, 450, 307 and 302 IPC. These bail application have been filed together and are being decided by this common order. 2. The incident took place on 12.9.98 at about 10 a.m. in the busy market of Salasar Bas Stand at the shop of the informant Banwarilal and his brother Ompraksh. The prosecution case is that all the petitioners along with other accused persons after forming unlawful assembly armed with deadly weapons i.e. Pharsi, Sword, iron rod and lathies with an common object to kill Om Prakash and Bhemaram came there in two jeeps when Banwarilal. Om Prakash, Bhemaram were sitting in the shop and launched murderous assault on Om Prakash and Bhemaram. Bhemaram was dragged out of the shop. The accused persons ransacked the shop, disrupted the telephone connection and smashed counter of the shop and also badly damaged the two jeeps of the informant standing on the road. Accused Keshar gave a Pharsi blow to Bhemaram and all the other accused persons inflicted injuries by lathies, swards, iron rods and pharsi. Shyama of village Vidoli gave a pharsi blow on the head of Om Prakash which was taken on the hand by him which completely cut middle finger of the left hand. All other accused persons also inflicted injury by their weapons. The names of the eleven persons were given in the FIR i.e. Keshar Jat, Dugoli, Shyama Jat, Vidoli, Madan Lai Jat, Udansar, Rajendra Jat, Deh, Rajendra Jat, Mandeta, Sanjay, Rohtash Jat, Vidoli, Mohan Singh Jat, Mandeta, Mangil Lal Jat, Dugoli, Jhavarmal Jat, Dugoli, Sarvan Jat, Khud and Tara Chand Jat, Khich Ka Bash and 15 other more boys were with them in the unlawful assembly armed with deadly weapons. Thereafter, they kidnapped Bhemaram, Om Prakash in two jeeps, Banwarilal, Mohan Singh and other persons tried to intervene and they were also injured in the incident. The first information report was lodged on the same day at 10.30 p.m. at police station Kotwali, Sikar by Banwarilal. Thereafter, they kidnapped Bhemaram, Om Prakash in two jeeps, Banwarilal, Mohan Singh and other persons tried to intervene and they were also injured in the incident. The first information report was lodged on the same day at 10.30 p.m. at police station Kotwali, Sikar by Banwarilal. The case was registered by SHO and a site map was prepared, a portion of middle finger of Om Prakash injured from the place of occurrence was also seized. The investigating officer also took possession one telephone instrument, blood stains, blood stained cloths of Bhemaram and Om Prakash, Bhemaram, Om Prakash were examined by medical jurist, Bhemaram died of the injures at 12.30 p.m. on 13.9.98. The post-mortem was conducted by medical jurist who found 30 injuries on Bhemaram on all the parts of the body including six lacerated wounds, four incised wounds, one wound was stitched and number of bruises, abrasions, ante-mortem in nature. The case of death was coma brought about as a result of all the ante-mortem injuries to brain and cumulative effect of other multiple injuries which were sufficient to cause death in ordinary course of nature. Om Prakash sustained 11 injuries out of which 5 were caused by sharp edged weapon. Weapons were recovered in consequence of information and at the instance of accused persons Mohan, Tarachand, Shravan Kumar, Raju @ Rajesh, Mahendra s/o Laxman and Jagdeesh Prasad. On completion of the investigation, chargesheet has been submitted as stated above. 3. I have heard learned counsel for the accused petitioners and learned Public Prosecutor as well as learned counsel for the complainant. 4. It may be noted that one co-accused Kishan Singh was granted bail by this court on 25.2.99. The brother of deceased moved an application for cancellation of bail under section 439(2) Cr.PC. which came to be rejected by order dated 11.5.99 expressing the view that Kishan Singh was not among the persons who caused the injuries to the deceased. 5. Learned counsel for the petitioners vehemently argued that the names of the petitioners do not find mention in FIR lodged by an eye witness Banwarilal. The incident is alleged to have taken place in the busy market place but no local witnesses or the occupants of the houses in the vicinity have been examined by the investigating officer. The police has examined only seven eye witnesses. Banwarilal is the informant. Sanvarmal, Mohan Singh,. The incident is alleged to have taken place in the busy market place but no local witnesses or the occupants of the houses in the vicinity have been examined by the investigating officer. The police has examined only seven eye witnesses. Banwarilal is the informant. Sanvarmal, Mohan Singh,. Tarachand were sitting at his shop, at the time of occurrence. Statements of Om Prakash injured, Mangilal and Bhemaram deceased were also recorded on the same day but Bhemaram later on expired, Banwarilal, Savarmal and Mangilal have not named petitioner Hariram in the statements under section 161 Cr.P.C. Test identification parade has also not been held. The name of Hariram has been given by Mohan Singh, Tarachand and Om Prakash. Learned counsel for petitioner on behalf of Hariram contended that Tarachand and Mohan Singh have stated about the residence of Hariram of village Dulhepura but Om Prakash and Bhemaram stated about his residence of village Banuda. There is no material to show that Hariram played any part in the alleged kidnapping of Om Prakash and Bhemaram. Only five accused Shyama, Keshar, Rajendra Jat, Madan and Raju are named for causing injuries after kidnapping. Even in village Banuda, there are four persons of the name of Hariram, police did not prepare any site map or took blood stains at the alleged place of beating after kidnapping. 6. While adopting the arguments on behalf of the petitioner Hariram, it was argued on behalf of petitioner Bajrang Lal that his name also does not figure in the FIR lodged by Banwarilal and also the statement recorded under section 161 Cr.P.C. Savarmal and Mangilal have also not stated the name of the petitioner Bajrang Lal. Om Prakash, Mohan Singh, Tarachand and Bhemaram have disclosed the name of accused Bajrang lal but no overt-act has been assigned to him. The name of Bajrang lal is also not taken in the second part of the incident of alleged kidnapping and further beating to Bhemaram. It is, therefore, contended that presence of some persons in the alleged offence under section 395 IPC is not sufficient to show his involvement. 7. For petitioner Madanlal whose village has been shown in the petition as Shyampura it is argued that his name has not been given in the FIR, no overt-act has been assigned to him. It is, therefore, contended that presence of some persons in the alleged offence under section 395 IPC is not sufficient to show his involvement. 7. For petitioner Madanlal whose village has been shown in the petition as Shyampura it is argued that his name has not been given in the FIR, no overt-act has been assigned to him. The petitioner (Madanlal) has been implicated under section 120-B IPC mainly on the basis of the statement of two witnesses namely Prahlad and Mukunda recorded very late on 8.12.98 before' filing the challan. It is stated that Jhanvarmal brother of Mangilal, Madanlal resident of Shyampura, brother of Mangilal their driver Kishan Singh, resident of Shyampura and Raju, Deh and Raju Mandeta and Mangilal were talking to each other that Keshar by Om Prakash and Bhemaram. But accused Kishansingh has been granted bail, therefore, the case of the petitioner Madanlal is not distinguishable with that of accused Kishansingh. The police has submitted a re-post under section 169 Cr.RC. in favour of Suresh Kumar son of Tipuram Jat Vidoli, Hariram son of Mohan lal Jat for the offence under section 302/120-B IPC. 8. It is vehemently argued on behalf of the petitioner Tarachand that he is below 16 years of age. The learned court has taken the view that the petitioner is above 18 years only on the basis of ossification test which is not a sure test. The prosecution has made false implication by inflating number of accused persons and also by concocted matter because some facts are very unnatural that number of assailants could enter in the shop and dragged Bhemaram out of the shop. It is also unbelievable that cash in thousands was lying in the shop in the morning when the business had not even started at all. Moreover, the prosecution is blissfully silent about the motive of the crime. In fact, they have supressed the genesis of the occurrence and therefore they have not assigned any motivating force or earthly reason which impelled the accused persons to form unlawful assembly. There is glaring conflict in the number of injuries shown in the injury report of Bhemaram and the post mortem report. Only 11 injuries have been shown in the injury report against 30 given in the post mortem report. There is no injury mentioned on the vital part of the body of Bhemaram in the injury report. There is glaring conflict in the number of injuries shown in the injury report of Bhemaram and the post mortem report. Only 11 injuries have been shown in the injury report against 30 given in the post mortem report. There is no injury mentioned on the vital part of the body of Bhemaram in the injury report. It has also been mentioned in the post-mortem report that the relatives state about the occurrence taking place in the village. It is further submitted that as per the prosecution case, the assault took place in two parts i.e. at the shop and thereafter Om Prakash and Bhemaram were kidnapped in three jeeps and again assault as made near a village for which only 5 other accused persons have been named. Therefore, view cannot be taken that the present accused persons formed any unlawful assembly with other accused persons to kill Bhemaram and Om Prakash after kidnapping them. 9. Learned Public Prosecutor has opposed the bail applications in view of the gravity of the offences alleged against the petitioners and also the manner in which they assaulted and kidnapped Om Prakash and Bhemaram from the market in broad day light in three jeeps and thereafter also five other co-accused persons again inflicted injuries in pursuance of common object to Bhemaram and Om Prakash. Bheraram succumbed to the injuries. Therefore, there is clear material against petitioners that they have formed unlawful assembly to kill Om Prakash and Bhemaram and incident of assault at the shop, kidnapping and second assault are not separate incidents but part of the same transaction of the same incident. All the petitioners are liable for ail the" offences under section 149 IPC also. Om Prakash Bheraram and Mohan Singh and other witnesses have clearly given the names of the petitioners. Their statements cannot be seen with suspicion merely because Banwari Lal could not give name as argued above in FIR or in his statement. The Doctor has been examined and he has explained number of injuries observed on the person of Bhemaram. The Doctor who performed the post mortem has given all the injuries after dissection of the body. 10. Their statements cannot be seen with suspicion merely because Banwari Lal could not give name as argued above in FIR or in his statement. The Doctor has been examined and he has explained number of injuries observed on the person of Bhemaram. The Doctor who performed the post mortem has given all the injuries after dissection of the body. 10. For Madanlal petitioner also the bail was opposed on the ground that three cases are pending against him under section 379 IPC and one case under section 435 IPC, therefore, his case is also distinguishable from the case of Kishan singh. 11. In reply, it was contended that the prosecution has given omnibus version of the alleged assault and they have not assigned particular role to the petitioners about the beating or dragging from the shop etc. It shows that they are trying to falsely implicate the petitioners. 12. At this stage, it was submitted by the learned Public Prosecutor that the case is already fixed for recording the evidence of eye witnesses on 4th & 6th July, 1999. The learned counsel for the petitioners submitted that if this court is of the view that observations made for deciding applications are likely to prejudice the petitioner's case as the eye witnesses are to be examined and also that after recording the statements on 4th and 6th July, 1999 it will be more appropriate to effectively consider ail the arguments raised on behalf of the petitioners then they would like to withdraw the bail applications at this stage. 13. At this | age, it will not be appropriate to express views on merits about the various, contentions raised on behalf of the petitioners as well the learned Public Prosecutor with regard to the place of occurrence, motive, : forming unlawful assembly, overt-act assigned to the petitioners, omissions of names in the FIR etc. particularly when the evidence of eye witnesses is to be recorded on 4th and 6th July, 1999. I deem it just and proper to allow the learned counsel for the petitioners to withdraw the bail applications of Hariram, Bajranglal and Tarachand with liberty to file fresh bail applications. 14. The chargesheet has been submitted under section 302/120-B IPC against Madanlal petitioner. I deem it just and proper to allow the learned counsel for the petitioners to withdraw the bail applications of Hariram, Bajranglal and Tarachand with liberty to file fresh bail applications. 14. The chargesheet has been submitted under section 302/120-B IPC against Madanlal petitioner. Mere pendency of cases will not be proper ground to deny bail to petitioner Madanlal because in the instant case, his case stands on the same footing with that of co-accused Kishan singh who has been granted bail by this court 15. In the result, the bail applications of Hariram, Bajranglal and Tarachand are hereby dismissed as withdrawn. The bail application on behalf of Madanlal is hereby allowed. 16. Accordingly, it is ordered that petitioner Madanlal be released on bail provided he furnishes a personal bond in a sum of Rs. 20,000/- with two surties in the sum of Rs. 10,000/- each to the satisfaction of learned trial court with the stipulation to appear on each and every date of trial and whenever called upon to do so. *******