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2017 DIGILAW 294 (RAJ)

Allu v. State of Rajasthan

2017-01-25

NIRMALJIT KAUR

body2017
JUDGMENT : Nirmaljit Kaur, J. 1. This is second bail application under Section 439 of Cr.P.C. The petitioner has been arrested in connection with F.I.R. No. 56/2011, Police Station Bijjolia, District Bhilwara for the offences under Sections 148, 341, 332, 353, 307, 302 & 120-B I.P.C. and Section 3/25 of the Arms Act. 2. This is the second bail application. The same has been filed on the ground that as per the cross-examination of the eyewitness namely Bheru Lal (PW-7), he had recognized the present petitioner only by sheer guess work as it was dark. Secondly, a rifle was recovered from him and as per the FSL report, the rifle does not appear to have been used. Thirdly, as per the statement of Prem Singh (PW-9), Bheru Lal was not present on the spot and he has been introduced subsequently and thus, is not the actual eye-witness. He came on the spot subsequently after the incident was over. 3. The statement of Bheru Lal (PW-7) has been perused. It is specifically stated by him in his examination-in-chief that he was very much in the said vehicle and he had specifically seen these three persons. He gave a detailed description of those three persons. He further stated that he can recognize these persons and thereafter he also identified those three persons as sitting in the Court and identified them correctly. The argument that in his cross-examination he had submitted that he recognized these persons by sheer guess work cannot wipe out his specific stand in the examination-in-chief at this stage. The statement of Prem Singh that Bheru Lal came subsequently is also not made out from the statement of Prem Singh. In fact, it is specifically stated by him that Bheru Lal and two other persons had run away after the firing started which shows that Bheru Lal was very much present and ran away only after the firing started and not before, which corroborate the statement of Bheru Lal. The argument that as per the FSL report the rifle was recovered from the present petitioner was not used is sufficient to absolve the petitioner at this stage. As per the said FSL report, the only opinion given is that it could not be 'definitely stated' which does not completely rule out the use of the said firearm. 4. The argument that as per the FSL report the rifle was recovered from the present petitioner was not used is sufficient to absolve the petitioner at this stage. As per the said FSL report, the only opinion given is that it could not be 'definitely stated' which does not completely rule out the use of the said firearm. 4. The Apex Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Another, reported in 2005 Cri.L.J. 944 while dismissing the subsequent bail application rejected the argument that there was no supporting or corroborating evidence available for the prosecution observed in Para 46 as under :- "46. It is not necessary for us to weigh the evidence at this stage since we have already come to the conclusion that the prosecution on the basis of the material available on record has established a prima facie case against the accused and we are also of the opinion that the conduct of the respondent-accused as brought on record clearly indicates that enlarging the said accused on bail would impede the progress of the trial." 5. Similarly, the Apex Court in the case of Satish Jaggi v. State of Chhattisgarh and Others, reported in (2007) 11 SCC 195 refused to go into the credibility and evidential value of witnesses at the stage of granting bail by holding in Para 12 as under:- "12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial." 6. No ground is made out to release the petitioner on bail. Dismissed accordingly.