JEETU ALIAS JITENDRA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This is the third bail application under Section 439 of Cr.P.C. filed on behalf of the applicant, who is in custody since 19-10-2018, in connection with Crime No.32/2018, registered at Police Station Dinara District Shivpuri for the offence under Sections 302, 201, 34 of IPC. His first bail application (M.Cr.C.No.946/2019) was dismissed as withdrawn on 11-01-2019 and second bail application (M.Cr.C.No.7674/2019) was dismissed as withdrawn on 18-03-2019.

(2.) It is the submission of learned counsel for the applicant that on the basis of false pretext, he is in confinement since 19-10-2018. He referred the charge-sheet and submitted that the delay of 9 days has been caused in registering the FIR. Prosecution story is belied by eye-witnesses and they have not supported the story of prosecution. No Test Identification Parade has been conducted by the prosecution to establish identity of the culprits. Last seen theory does not establish guilt of the applicant in any manner because last seen witness made the statement after one month. Only on the basis of memo prepared under Section 27 of the Indian Evidence Act, applicant has been implicated. He relied upon the order dated 30-01-2019 passed in M.Cr.C.No.3262/2019 and the order dated 13-11-2018 passed in M.Cr.C.No.42551/2018 and seeks parity. It is further submitted that earlier the applicant preferred anticipatory bail under Section 438 of Cr.P.C. vide M.Cr.C.No.29113/2018 and vide order dated 27-07-2018, the same got dismissed. Therefore, his abscondence cannot go against him. It is further submitted that prosecution story is belied by the medical evidence, no injury has been caused over the person of the deceased by beating. No seizure of any weapon is from the applicant. It is further submitted that although applicant bears criminal antecedents but in one case under Section 302 of IPC he has been exonerated and in another case under Section 376 of IPC he is on bail. He relied upon the judgment rendered by the Hon'ble Apex Court in the matter of State of M.P. v. Pradeep Sharma, 2014 (1) JLJ 365 and submitted that in the said judgment, the Hon'ble Apex Court has dismissed anticipatory bail application under Section 438 of Cr.P.C. but this Court can grant regular bail under Section 439 of Cr.P.C.

(3.) Learned counsel for the respondent/State vehemently opposed the prayer made by the applicant. It is submitted that the witness Surendra Singh has made statement under Section 161 of Cr.P.C. about present applicant, accompanying the deceased and other co-accused on dated 25-01-2018 therefore, witness of last seen theory has referred the deceased and present applicant together. Therefore, inference can be drawn from the said statement about culpability of the applicant. It is further submitted that the applicant lives in the area of Char Shahar Ka Naka, Gwalior and the call details of the deceased indicate that his mobile was switched off lastly at the same locality where the present applicant resides and thereafter it was opened at Dinara i.e. the place of incident, therefore, involvement of the applicant can be connected. Besides that, learned counsel for the respondent/State opposed the prayer of bail on the ground that after incident in January, 2018, applicant remained in absconsion although he preferred anticipatory bail under Section 438 of Cr.P.C. vide M.Cr.C.No.29113/2018 which got dismissed on 27-07-2018 but he was arrested on 19-10-2018 and proclamation of absconsion under Section 82 of Cr.P.C. was against the applicant. Applicant also bears criminal antecedents in which one case was under Section 302 of IPC, another was under Section 376 of IPC and two more cases under Sections 25/27 of Arms Act were also pending against him and these criminal antecedents haunt him. Therefore, the applicant cannot seek parity vis a vis order dated 30-01-2019 passed in M.Cr.C.No.3262/2019 and the order dated 13-11-2018 passed in M.Cr.C.No.42551/2018. Thus, prayed for dismissal of bail application.