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2024 DIGILAW 256 (RAJ)

Bhakharram S/o Kachbha Ram v. State Of Rajasthan

2024-02-12

FARJAND ALI

body2024
ORDER : 1. The jurisdiction of this court has been invoked by way of filing an application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 63/2023 2. Concerned Police Station Sarwana 3. District Jalore 4. Offences alleged in the FIR Sections 302/34 & 120-B of the IPC & Sections 3/25 of the Arms Act 5. Offences added, if any - 6. Date of passing of impugned order 04.12.2023 2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. The co-accused Jagram, Gajaro and Kiran have already been released on bail. 3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 4. Have considered the submissions made by both the parties and have perused the material available on record. 5. A perusal of the FIR is revealing that the parties are close relatives and 4-5 years prior to the incident, marriage of co-accused Kiran was solemnized with Mohan Lal, who happens to be the son of deceased Bheekha Ram in aata-sata and the daughter of the deceased was married to one Ganpat Lal. Owing to some marital discord, an FIR No.62/2023 dated 02.07.2023 got lodged against the deceased party for the offences under Sections 498-A & 494/114 of the IPC wherein two accused namely Mohan Lal and Mohini Devi were charge-sheeted. This was the basic reason behind the feud between the two families. It is transpiring from the charge sheet that on the fateful day of the incident, i.e. 02.07.2023, the deceased along with other persons including Budh Ram, Shanti Lal and Badguram visited Village Bawarla where the accused party reside for the purpose of attending a community gathering and performance of some customary rituals. Both the parties confronted each other and after hot altercation, son of the petitioner named Praveen opened fire and shot at Bhikaram as a necessary consequence of which he died. Both the parties confronted each other and after hot altercation, son of the petitioner named Praveen opened fire and shot at Bhikaram as a necessary consequence of which he died. It is alleged that it was the petitioner who handed over the gun to the principal accused Praveen and exhorted him to kill the deceased Bhikharam. The petitioner was also present at the crime scene and it is pleaded that had it been the petitioner who adjured the accused Praveen to shoot the deceased then what prevented him to fire the gun at deceased Bhikharam as there was no occasion for him to pass the gun to his son instead of using the same himself. 6. After pondering over the submissions and the material collected during investigation, it is felt that there is substance in the submission of defence that owing to inimical relationship, the entire family has been roped into the matter of death of deceased Bhikharam whereas the fact is that it was the accused Praveen who fired the gun at the deceased thereby shooting him. 7. I have carefully gone through the statements of prosecution witnesses Ghama Ram, Ram Singh, Ramju Ram, Bhajan Lal, Aashu Ram, Jaikishan, Shravan Kumar, Om Prakash, Ganpat Lal, Shanti Lal and Bhajan Lal S/o Krishan Lal recorded during investigation and have observed that though all the witnesses have, in unequivocal terms, narrated the story that Smt. Kiran shouted and told her father (the petitioner herein) to kill the deceased resulting which the petitioner supplied the gun to his son Praveen and then Praveen shot the deceased, however, the stereotypical and platitudinous recitation of the witnesses has persuaded this Court to think that it may be a case where accused Praveen alone was responsible and due to previous animosity, the entire family has been pulled into the matter. The Investigating Agency has collected material in this regard and the charge sheet has been filed. Now, the above-mentioned issue would be ascertained by the learned trial Court after the parties would lead evidence in the trial and the same would be tested through cross examination and re-examination of the witnesses, therefore, this Court abstains from making any adverse opinion in this respect. 8. Now, coming to another aspect of consideration of bail where plea of false implication has been raised making claim of previous animosity. 8. Now, coming to another aspect of consideration of bail where plea of false implication has been raised making claim of previous animosity. Previous animosity is like a double-edged weapon; one of the aspects to it is that it gives rise to a cause of action for the accused to harm the enemy; it stimulates and instigates the accused to take revenge, however, the other aspect to it is that it provides equal possibility for the complainant/prosecutor to drag the enemy in a false case so as to chastise or teach a lesson to him. There are two perspectives of how the parties to a criminal litigation are enemies to each other when the genesis of the case lies in animus perpetuating between the two sides since before; if accused is the enemy of victim then the victim is equally an enemy of the accused. When cases where there is an issue pertaining to a background of prior acrimony come up for adjudication, it is hard to decode or comprehend in clear terms whether the accused assaulted the victim or the victim dragged accused, who is his enemy, into the mud. Thus, it becomes very ticklish for the Judge to adjudicate upon it. In my considered opinion, in cases like the above, the entire evidence has to be scrutinized very cautiously so as to thwart passing of an inaccurate and unjustifiable decision. 9. Ordinarily, it can be assumed that if an accused is having a gun in his hand while he is standing in front of the victim and there is an acrimonious exchange between them then the natural instinct of the accused would be to aim at the enemy and shoot. In this case, the above common-man or common-parlance analogy has come into the mind of this Court as both father and son were present at the place of incident and it is alleged that the father (petitioner) supplied the weapon to the son to kill the victim. In this case, the above common-man or common-parlance analogy has come into the mind of this Court as both father and son were present at the place of incident and it is alleged that the father (petitioner) supplied the weapon to the son to kill the victim. In common prudence, it can be presumed that instead of supplying the weapon to his son to shoot the victim, the father himself would like and choose to fire upon the victim and kill him by his own hands as a loving/doting father would never opt to put his son in harm's way and instead thereof, he would opt to take the blame/responsibility/trouble on his own shoulders so as to save the skin of his son. Although it is not necessary that such a situation would unravel all the time in the same fashion but it may unravel in this manner most of the times. This particular fact appears to be flimsy and it is very unlikely that in a heated atmosphere, the father will not choose to shoot the enemy himself and would rather hand over the gun to his son and command him to shoot the victim/enemy, more so when they are standing next to each other. In common prudence, he will not waste time in supplying the weapon to someone else, let alone his own ward, as in the meantime, the enemy may have a chance to save himself or to make an assault in presumption/anticipation. 10. While adjudicating upon a criminal matter, Courts need to view the factual conspectus from a panoramic view like that of a landscape, that is, extensive, unbroken and in all directions. In simple words, a crime unfolds in a setting and is committed by an individual or a group of individuals and thus, a lot of circumjacent factors like intention, psychology of a reasonably prudent man, common prevalence of occurrences, circumstances of the accused, relation of the accused persons with each other, aggravating stimulus present in the surrounding environment and many other aspects are to be considered while considering a case for grant of bail. Of course, the circumstances of the accused and other relevant factors as mentioned above are to be considered while determining the term of sentence of an accused as well. Of course, the circumstances of the accused and other relevant factors as mentioned above are to be considered while determining the term of sentence of an accused as well. The circumstances idiosyncratic to an accused are relevant to consider where question of liberty of an individual is concerned, thus, diving a little deeper while granting bail in certain cases is not an exercise in irrelevance. 11. While Courts are engaged in determination of cases where the accused is inculpated under provisions like Sections 34, 109, 120-B and 149 of the IPC where multiple accused are involved and the concept of vicarious liability also comes to the fore, the courts must assess and scrutinize the entire material available against the accused with due caution so as to comprehend the exact role of an accused in clear terms. This becomes even more imperative in such cases as mentioned above as over-implication in these matters is a thing of common knowledge and concern. It's a common phenomenon that a person having political rivalry, personal grudge or inimical relationship would have the tendency to implicate more number of persons associated to the main accused in the alleged crime so whenever the issue comes up to assess the evidence so as to fix vicarious liability upon an accused, the courts should be more vigilant to make a threadbare discussion and assessment of evidence be it a question on bail or on merits. 12. This Court is of the view that while considering a bail application, be it under Section 438 or Section 439 of CrPC, courts should look at the material cautiously and deeply if features like political rivalry, personal grudge, brewing vendetta etc. are involved where it is human instinct to implicate the opposite party based on false, frivolous, part-false or part-frivolous allegations or hurt the enemy on either side. 13. There is a phenomenon prevalent in criminal jurisprudence as per which if it appears from the plea of the defence that there is slightest possibility of acquittal, then the courts should tend to incline towards grant of benefit of bail to such accused as if he stays in custody for an indefinite period and his conviction is not sustained, then the courts will be unable to give back to him the days that he has already spent in prison and there will be no way to reverse this hapless scenario. It is apposite to recall here that there is no concept of serving a part of the term of sentence at the pre-conviction stage and the remaining part of it at the post-conviction stage in criminal jurisprudence as well as in the criminal statutes which are in force in India. 14. It is well-nigh settled law that at a pre-conviction stage; bail is a rule and denial from the same should be an exception. The purpose behind keeping an accused behind the bars during trial would be to secure his presence on the day of conviction so that he may receive the sentence as would be awarded to him. Otherwise, it is the rule of criminal jurisprudence that he shall be presumed innocent until the guilt is proved. 15. After pondering over the legal provisions made in the code of Criminal Procedure, the law enunciated by Hon’ble the Supreme Court through plethora of judicial pronouncements and upon deliberation of bail jurisprudence, it is understood that the only thing which a court of law has to ascertain while entertaining a bail plea is whether the accused should be allowed to come to the court to attend the judicial proceeding from his home and he may be allowed to remain with his family and within the society on the specific condition that on the stipulated date of the hearing of the case, he will willfully attend the court proceeding or contrary to this, he is such a person that even in the pending trial, he should be detained and should not be allowed to visit his family and should be lodged at a specified place of detention so that on the day of hearing, he may be brought to the court from the jail. In other words, it is to be decided whether he may be allowed to eat, sleep and live with his family like a man ordinarily does or he may be allowed to eat, sleep and live in the jail. In other words, it is to be decided whether he may be allowed to eat, sleep and live with his family like a man ordinarily does or he may be allowed to eat, sleep and live in the jail. It all boils down to this that whether the Court wishes to allow the accused to come to the court to attend the proceedings from his home upon furnishing his bonds and surety of independent person(s) or the court thinks that he cannot be allowed to roam free and therefore, he should be detained so that he may be brought before the court on the day fixed for the hearing. This Court is of the considered view that this is one of the prime concerns which is to be thought over and to be ascertained while entertaining a bail plea. It is a judicially noticeable fact in the present era that due to high volume of pending cases, culmination of trial takes considerable time and in my view, keeping the accused behind the bars during the pendency of the case would serve no purpose except in exceptional circumstances. 16. The next consideration for deciding the bail application would be that the co-accused Jagram Ram, Smt. Gajaro and Kiran have already been enlarged on bail by this Court vide order dated 07.11.2023 passed in S.B. Criminal Misc. Bail Application No.(s) 12856/2023, 9957/2023 and 10312/2023. 17. In the peculiar facts and circumstances of the case, the pleas of innocence, false implication, over-implication and exaggeration cannot be ignored since the instant proceedings pertain to the question of liberty of a 60 years old man. There are as many as 33 witnesses who have been projected by the prosecution and it can be assumed that the trial will certainly take long time to reach at a legitimate conclusion and there appears no justifiable reason to keep the petitioner behind the bars for an indefinite period pending trial. 18. As an upshot of the discussion made herein above as well as upon considering the ground of parity, the particular fact that the petitioner was not the person who fired at the deceased and the fact that there is high probability that the trial may take long time to conclude, this Court deems it suitable to grant the benefit of bail to the petitioner in the present matter. 19. 19. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he 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 his appearance before the court concerned on all the dates of hearing as and when called upon to do so.