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2023 DIGILAW 1921 (RAJ)

Maya W/o Late Devi Parsad v. State of Rajasthan

2023-10-07

KULDEEP MATHUR

body2023
JUDGMENT : KULDEEP MATHUR, J. 1. The instant appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant against the order dated 18.11.2021 passed by learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Cases, Jodhpur in Cr. Misc. Bail Application No. 358/2021, whereby the bail application filed by the appellant, who has been arrested in connection with FIR No. 143/2020 registered at Police Station Bap, District Jodhpur, for offences under Sections 302, 201/34 of IPC, has been rejected. 2. Learned counsel submitted that co-accused Anil Kumar has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 06.01.2021, passed in S.B Criminal Misc. Bail Application No. 12682/2020. 3. Learned counsel vehemently submitted that the appellant has not been named in the FIR initially lodged by the complainant, however, on 12.06.2020, the complainant submitted a written report to the police stating that deceased-Devi Prasad has been murdered by the present appellant and co-accused Anil Kumar on 28.04.2020 and after committing the crime, the body of the deceased was thrown in the taanka (water tank). 4. Learned counsel further submitted that there is no eyewitness of the alleged incident and the case against the present appellant is solely based on circumstantial evidence, which is otherwise a weak piece of evidence, unless corroborated in material particulars. Learned counsel submitted that during post mortem, no injuries were found on the body of the deceased and in the opinion of the Medical Board, the deceased died due to asphyxia arising out of ante-mortem drowning. Learned counsel submitted that as per prosecution, the appellant made an extra judicial confession to one Chandan Singh on mobile phone and the telephonic conversation between them was recorded in the mobile phone. 5. Learned counsel also submitted that a co-ordinate Bench of this Court while dismissing the appeal seeking bail on behalf of the appellant, granted liberty to the appellant to file a fresh appeal for bail after recording of the statements of Chandan Singh and complainant (Ishwar Chand). Learned counsel submitted that statements of Chandan Singh have been recorded before competent criminal court as PW-1 on 02.12.2021, wherein he has not supported the prosecution story and has turned hostile. Learned counsel submitted that statements of Chandan Singh have been recorded before competent criminal court as PW-1 on 02.12.2021, wherein he has not supported the prosecution story and has turned hostile. Learned counsel also submitted that statements of the complainant have also been recorded before competent criminal court as PW-2 on 04.08.2022, wherein though he had stated that initially at the time of lodging of the FIR, he has not named the present appellant but later on, he was told by the son of the petitioner and deceased namely Jaswant that on the date of alleged incident, co-accused Anil came to their house and remained in the company of the present appellant for about 20-25 minutes. Learned counsel submitted that PW-2 in his statements has further stated that extra judicial confession was made by the present appellant before Chandan Singh (PW-1) though mobile phone and telephonic conversation between them was recorded, however, the transcript of the telephonic conversation was not prepared by the investigating agency in the presence of the complainant (PW-2) and the mobile phone through which telephonic conversation was recorded had not been handed over by him to the investigating agency and he had only handed over a CD containing the conversation between Chandan Singh and present appellant. 6. Learned counsel for the appellant submitted that the statements of Jaswant Singh have also been recorded as PW-3 before competent criminal court on 30.5.2023, wherein he has stated that he had neither seen the appellant beating/assaulting the deceased nor he had seen her pushing/throwing the deceased into the taanka (water tank). 7. Lastly, learned counsel submitted that the appellant is languishing in jail since 06.07.2020. It was submitted that the trial is not likely to be completed in near future. Learned counsel also submitted that challan against the appellant has already been filed before competent criminal court. 8. On the strength of the submissions advanced, learned counsel for the appellant prayed that the appellant may be enlarged on bail. 9. Learned Public Prosecutor and learned counsel for the complainant have vehemently opposed the prayer for bail. Learned counsel submitted that the prosecution case is based on circumstantial evidence. Learned counsel submitted that transcript of the extra judicial confession made by the appellant on mobile phone to Chandan Singh is available on record. 9. Learned Public Prosecutor and learned counsel for the complainant have vehemently opposed the prayer for bail. Learned counsel submitted that the prosecution case is based on circumstantial evidence. Learned counsel submitted that transcript of the extra judicial confession made by the appellant on mobile phone to Chandan Singh is available on record. Learned counsel submitted that even if, Chandan Singh (PW-1) has turned hostile, the hostility of the witness has to be evaluated by the competent criminal court on the basis of the other material and evidence produced before it. Learned counsel submitted that hostility of witness cannot be considered as a new ground for granting bail to the accused person. Learned counsel further submitted that Ishwar Chand (PW-2) has supported the prosecution story and therefore, looking to the nature and severity of allegation, the appellant does not deserve on bail. 10. Heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant. Perused the material available on record. 11. Having considered the submission advanced at bar and facts and circumstances of the case and after having perused the contents of the FIR and the challan papers, this Court prima facie finds that Chandan Singh to whom extra judicial confession was made by the appellant, has turned hostile. It is a settled law that extra judicial confession is a weak piece of evidence unless the credibility of the person to whom it is made is established beyond doubt. Chandan Singh in view of above, cannot be considered as a credible person as he himself has not supported the prosecution story. This Court also prima facie finds that the complainant-Ishwar Chand initially in the FIR did not name the appellant, however, later on, on being told by Jaswant Singh that he had seen the appellant in the company of co-accused Anil Kumar, named her in the written report as an accused. It is also to be noticed that Jaswant Singh is not an eye-witness of the incident and after about one and a half month from the date of alleged incident, he had disclosed the factum of seeing Anil Kumar and petitioner together on the date of alleged incident, despite having sufficient opportunities to do so on earlier occasions. It is also to be noticed that Jaswant Singh is not an eye-witness of the incident and after about one and a half month from the date of alleged incident, he had disclosed the factum of seeing Anil Kumar and petitioner together on the date of alleged incident, despite having sufficient opportunities to do so on earlier occasions. This Court also prima facie finds that Ishwar Chand has not handed over the mobile phone on which alleged conversation between the appellant and Chandan Singh took place and the transcript was also not drawn in his presence. 12. This Court also cannot lose sight of the fact that the appellant is in judicial custody since 06.07.2020 and co-accused Anil Kumar has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 6.1.2021. 13. In view of discussion made above, this Court is inclined to enlarge the appellant on bail. 14. Accordingly, the appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is allowed. The order dated 18.11.2021 passed by learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Cases, Jodhpur is set aside and it is ordered that the accused-appellant-Maya W/o Late Devi Parsad shall be enlarged on bail in connection with FIR No. 143/2020 registered at Police Station Bap, District Jodhpur, provided she furnishes a personal bond in the sum of Rs. 50,000/- with two sureties of Rs. 25,000/- each to the satisfaction of the learned trial Judge for her appearance before the court concerned on all the dates of hearing as and when called upon to so. 15. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of appeal. The trial court shall not get prejudiced by the same.