MALA Vs. STATE

JUDGEMENT

(1.) The learned counsel for the petitioner submits that the co-accused Seema has been acquitted in respect of this very FIR. He further submits that the role ascribed to Seema is identical to the role ascribed to the present petitioner. Accordingly, he submits that this is a fit case for grant of anticipatory bail.

(2.) The learned counsel for the State submitted that while there may be similarity in the roles ascribed to the co-accused Seema and Mala, this in itself would not entitle the petitioner Mala to anticipatory bail. In support of his contention, he referred to the decision of a Division Bench of this court in the case of State (Delhi Administration) v. Som Prakash @ Som Nath @ Somi: 1998 DLS 279 HC and in particular drew my attention to paragraph 21 thereof which reads as under:- 21. We have come to the conclusion that the statements of Prem Wati, Maya Devi and Vijay Kumar, the three eye witnesses recorded in the trial of Jagan Nath in the absence of the accused are inadmissible in evidence and they were not examined in the trial of the accused, the same could not have been used against the accused. There being no incriminating material on record against the accused in order to bring home the charge against him, the impugned judgment of conviction and sentence cannot be sustained. The same is liable to be set aside.

(3.) Accordingly, he submits that the evidence on the basis of which a co- accused was acquitted cannot be read in the case of the accused in respect of whom the trial has not proceeded as the same would be inadmissible. Therefore, he submits that the evidence on the basis of which co-accused Seema was acquitted cannot be taken as a circumstance in favour of the present petitioner. Upon a reading of the aforesaid extract from the said judgment, it is clear that the statements of the eye- witnesses recorded in the trial of Jagan Nath in the absence of the accused Som Prakash were inadmissible against him inasmuch as they were not examined in the trial of the accused. In that case, it appears, that there were portions in the statements of the said three eye-witnesses which were against the accused and the Division Bench of this Court held that since those statements were recorded in the absence of the accused Som Nath, the same could not be used against him and were inadmissible. The case here is entirely different. There is no allegation that there were statements contained in the evidence recorded in the case of the co-accused Seema which are against the present accused. At this stage of grant of bail, it does appear, prima facie, that once the co-accused Seema has been acquitted and the roles ascribed to the present petitioner and the co-accused Seema are admittedly the same, a case for grant of anticipatory bail has been made out.