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2023 DIGILAW 2119 (RAJ)

Mahendra S/o Shree Babulal v. State of Rajasthan

2023-11-21

KULDEEP MATHUR

body2023
ORDER : 1. These applications for bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested and chargesheeted for offences under Sections 147, 148, 149, 323, 342, 364, 302, 458 and 120-B of IPC in connection with FIR No. 110/2021 registered at Police Station Bhawanda, District Nagaur. 2. By way of present order, the second bail application on behalf of accused-petitioner Mahendra and Mahipal and the first bail application filed on behalf of accused-petitioner Suresh Badiyasar are being decided. 3. The common allegation against the present accused petitioners is that on 01.10.2021, they brutally assaulted the deceased-Sunil and inflicted multiple injuries upon him including a head injury. The deceased-Sunil succumbed to the injuries while undergoing treatment. 4. The first bail application (Crl. M.B. No. 1145/2023 and Crl. M.B. No. 1147/2023) filed on behalf of petitioners-Mahendra and Mahipal were rejected by this Court vide a common order dated 26.04.2023. 5. The order dated 26.04.2023 is reproduced below for ready reference: “These applications for bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested in connection with FIR No. 110/2021 registered at Police Station Bhawanda, District Nagaur, for offences under Sections 147, 148, 149, 323, 342, 364, 302, 458 and 120-B of IPC. Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record. Learned counsel for the petitioners submitted that from the perusal of the post-mortem report of the deceased dated 12.10.2021, issued by a civil hospital, Ahmedabad, it is apparent that the cause of death was cardiac respiratory failure due to injuries on the body and its complications. Learned counsel submitted that though the deceased in his statements dated 02.10.2021 has not specified the injuries caused by the accused persons namely Mahipal, Mahendra and Suresh but from the perusal of FIR and the statement of the eye witnesses recorded under Section 161 Cr.P.C. it is evident that the allegation of inflicting head injuries upon deceased from an iron rod has been levelled against co-accused-Suresh. Learned counsel vehemently submitted that since the head injury has not been attributed to the present petitioners, the benefit of bail may be extended to them. Learned counsel lastly submitted that a co-ordinate bench of this Court vide order dated 01.12.2022, has already enlarged co-accused-Surendra @ Chhela Ram S/o Shri Om Prakash (in S.B. Crl. Learned counsel vehemently submitted that since the head injury has not been attributed to the present petitioners, the benefit of bail may be extended to them. Learned counsel lastly submitted that a co-ordinate bench of this Court vide order dated 01.12.2022, has already enlarged co-accused-Surendra @ Chhela Ram S/o Shri Om Prakash (in S.B. Crl. M.B. No. 9500/2022), Shivkaran @ Siyaram S/o Harsukh Ram vide order dated 24.11.2022 (in S.B. Crl. M.B. No. 14952/2022), Shobha vide order dated 17.11.2022 (in S.B. Crl. M.B. No. 14361/2022), Mahendra vide order dated 13.07.2022 (in S.B. Crl. M.B. No. 6886/2022) and Sohan Lal and Another vide order dated 17.02.2022 (in S.B. Crl. M.B. No. 1356/2022) on bail. Learned counsel thus implored the Court to accept the bail application. Per contra, learned Public Prosecutor opposed the bail applications and submitted that the petitioners in a pre-planned manner brutally assaulted the deceased with iron rods and lathis. Learned Public Prosecutor submitted that the post-mortem report is indicative of the fact that the cause of death is the injuries caused by the petitioners on the body of the deceased and its complications. Learned Public Prosecutor submitted that looking to the seriousness of the offence committed by the petitioners, they do not deserve to be enlarged on bail. Heard. Having regard to the totality of the facts and circumstances of the case, particularly keeping in view of the fact that all accused persons were alleged to have been armed with lathis and iron rods, were charged with Sections 147, 148, 149, 323, 342, 364, 302, 458 and 120-B of IPC, at this stage it would not be justified and proper for this Court to consider the individual role of the accused persons. It is also to be noted that deceased and other eye witnesses in their statements have clearly alleged that all the petitioners were armed with lathis and iron rods who brutally assaulted the deceased in a pre-planned manner to cause his death. Mere fact that petitioners were armed with lathis and the head injury has been attributed to co-accused-Suresh, cannot be a ground sufficient to release them on bail at this stage. Mere fact that petitioners were armed with lathis and the head injury has been attributed to co-accused-Suresh, cannot be a ground sufficient to release them on bail at this stage. As far as argument with regard to grant of bail to co-accused persons (as indicated above) is concerned, the same is not tenable, as from a bare perusal of FIR and statements of eyewitnesses, it is apparent that the allegations of inflicting injuries have been levelled against the petitioners. The present bail applications, in view of aforesaid are dismissed. However, the petitioners are at liberty to file fresh bail applications after the statements of eye-witnesses.” 6. Learned counsel for the accused-petitioners submitted that after the rejection of the first bail application filed on behalf of accused petitioners-Mahendra and Mahipal, the statements of eye-witnesses of the incident namely, Raju Ram (PW-1), Jaipal (PW-2), Ram Lal (PW-3) and Shiv Ram (PW-4) got recorded before the competent criminal court on 4.7.2023, wherein they have not supported the prosecution story and have turned hostile. Learned counsel further submitted that cause of death of the deceased – Suresh was cardiac respiratory failure, due to injuries on the body and its complications and since the same was not due to the alleged head injury and other injuries inflicted upon him, the accused petitioners herein deserve to be enlarged on bail. 7. To substantiate this argument, attention of the Court was drawn towards the post-mortem report of deceased-Sunil dated 12.10.2021; opinion of the Medical Jurist of Civil Hospital, Ahmedabad dated 05.01.2022 etc. 8. It was also contended that the deceased had died after 11 days from the date of alleged incident and that he may have died due to septicemia or any other reason. It was further submitted that the co-accused Babu Lal and Jeetu who were named as assailants by Kailash in his statements under Section 161 Cr.P.C. on the basis of his conversation with the deceased soon after the incident, have already been enlarged on bail by a coordinate Bench of this Court vide order dated 17.08.2023. Learned counsel submitted that case of the present petitioners is not distinguishable from that of the above name co-accused persons. 9. Learned counsel submitted that case of the present petitioners is not distinguishable from that of the above name co-accused persons. 9. Learned counsel submitted that the petitioners are in judicial custody and since the eye witnesses of the alleged incident, in their statements before the competent criminal court have turned hostile, therefore, the petitioners herein deserve to be enlarged on bail. 10. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the bail application and submitted that there is no change in the circumstances after rejection of the first bail applications by a detailed common order and therefore, the present second bail application on behalf of Mahendra and Mahipal is not maintainable. It was submitted that Shiv Ram (PW-4), after his court statements, has also submitted a written report at Police Station Kotwali, Nagaur alleging therein that the named close aides of the accused-petitioners had threatened him prior to recording of his court statements and that he had given statements before competent criminal court under threat/pressure exerted by the accused-petitioners through their aides. It was also submitted that investigation on the complaint submitted by Shiv Ram (PW-4) is being conducted by the investigating agency. 11. Learned counsel further submitted that in view of the statements (parcha bayaan) of the deceased recorded by the investigating agency and the recoveries of the weapons allegedly used by the petitioners in commission of alleged crime, coupled with severity of punishment and seriousness of the accusations, the petitioners herein do not deserve to be enlarged on bail. 12. Heard learned counsel for the petitioners, learned Public Prosecutor and learned counsel for the complainant. Perused the material available on record. 13. Having considered the rival submissions, facts and circumstances of the case and after having perused the FIR, challan papers and statements of the eye-witnesses, this Court prima-facie finds that the deceased-Suresh in his statements (parcha bayaan) specifically stated that present accused petitioners namely, Mahipal, Mahendra and Suresh gave him blows and inflicted injuries upon his head through an iron pipe. The statements of deceased are sufficiently corroborated by the injury report dated 01.10.2021 prepared at the Community Health Centre, Nagaur, fard surat haal laash (dead body inspection report) dated 12.10.2021 prepared at the mortuary of Civil Hospital, Ahmedabad and the post mortem report dated 12.10.2021. The statements of deceased are sufficiently corroborated by the injury report dated 01.10.2021 prepared at the Community Health Centre, Nagaur, fard surat haal laash (dead body inspection report) dated 12.10.2021 prepared at the mortuary of Civil Hospital, Ahmedabad and the post mortem report dated 12.10.2021. This Court finds that the recoveries of vehicle (Bolero), mobile phones and lathis have been made at the instance of accused petitioners on the basis of the information divulged by them under Section 27 of the Indian Evidence Act during the course of investigation. 14. This Court also prima-facie finds that as per prosecution, the petitioners and the other co-accused persons with common object of assaulting and killing, gave indiscriminate blows with blunt weapon to the deceased and therefore, individual role of the accused persons in the alleged crime cannot be ascertained at this stage when the trial against them is pending and they have been charged for the offence under Section 149 IPC. 15. This Court also finds that no specific role/injury was assigned by the deceased in his statements (parcha bayaan) to the co-accused persons who have been enlarged on bail by the coordinate Bench of this Court. 16. In wake of the discussion made herein above, this Court is not inclined to grant bail to the accused petitioners and both the applications for bail are dismissed as such. 17. It is however, made clear that the findings recorded/observations made above are for limited purpose of adjudication of present bail applications. The trial Court shall not be prejudiced by the same.