SHIVRAJ SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present bail application has been filed under Sec. 439 Cr.P.C. on behalf of the petitioner, who is in judicial custody in connection with F.I.R. No. 56/2011, Police Station Bijoliya, District Bhilwara, registered for the offence under Ss. 147, 148, 341, 323, 332, 353, 307, 302 and 102-B of the Indian Penal Code.

(2.) Heard learned counsel for the petitioner as well as learned Public Prosecutor. Perused the material available on record.

(3.) Learned counsel for the petitioner stated that PW-2 Anurag, PW-3 Surendra Gautam, PW-4 Brijendra Singh, PW-5 Vikram Singh S/o Laxman Singh, PW-6 Vikram Singh S/o Prithvi Raj Singh, PW-11 Ravi, P-12 Hitesh, PW-13 Vicky, PW-18 Bhanwar Lal, PW-28 Mukesh, PW-29 Prem Singh, PW-31 Sanjay and PW-35Manoj Yadav have not supported the story of the prosecution and as such they have declared hostile by the learned Trial Court; that the story of the prosecution has not been proved by any of the eye-witnessess; that PW-30 Surendra Solanki has admitted that the clothes are not available/present before the Court today; that PW-36 Ram Kishore, motbir of the recovery memo of persons, who is not an independent witness, stated that it is an admitted position that all these memos are prepared at MBS Hospital, Kota and at every time, there were number of patients and their attendants were available in that Hospital; that PW-48 Dr. Vitthal Bhardwaj admitted that the injuries caused to Bherulal may be injures of any road accident, such type of injuries may be caused in any road accident; that all the witnesses present at the spot (crime scene) categorically stated that, " yxHkx 10 ls 15 vkneh jkbZQy] fiLVy] 12 cksj oxsjk ls Qk;j djrs vk;s vkSj mUgksaus xkMh dks pkjks rjQ ls ?ksj fy;k tokc esa gekjs daekMksa us Qk;j fd;s ftlls,d dkcZu ls Qk;j ugha gks ik;k o ckgj ls vkokt vk jghs Fkh ekjks&ekjk |" Learned counsel further stated that there is no specific allegation against the accused-petitioner; that the accused-petitioner has not been identified at the spot or even thereafter; that there are material contradictions in the statements of the prosecution witnesses; that Mohammed Salim (PW-1) admitted that due to darkness, he cannot identified any of the accused and he was not sure that the person identified by him in the Court was present at the spot or not; that Bheru Lal, who was the in-charge of the police team, has wrongly identified the accused in the Court, he identified accused Giriraj Singh as Allu @ Arvind, identified accused Allu @ Arvind Singh as Shivraj Singh, the present petitioner as also has wrongly identified accused Giriraj Singh as Allu @ Arvind Singh; that PW-7 Bheru Lal alsoadmitted that, "ikjlksyh Fkkus dk tkIrk gesa dksVqUnk eksM ls vkxs rd LdkWV fd;kA ;g lgh gS fd ikjlks yh ds mijkUr dksVqUnk eksM] eSuky] vkjksyh] fctk sft;k a ds Fkkuksa dk {ks=kf/kdkj vkrk gSA ;g lgh gS fd ikjlksyh Fkkus dh lhek lekIr gksus ds mijkUr ?kVuk ?kVhr gqbZ rc rd fdlh Hkh Fkkus dh LdkWV ugha Fkh|" This witness further stated that he did not inform any of the concerned Police Station in this regard because there was no wireless network and did not inform through mobile of any person; that on the contrary, PW-16 Kanti Lal, driver of the pick-up van stated that information in regard to escort had been sent by Bheru Lal. This witness Kanti Lal further stated that he identified the accused-petitioner on the basis of guess work. Learned counsel stated that as per the statement of PW-9 Prem Singh and PW-10 Shabbir Mohammed stated that, when they reached at the spot after arrival of the police party, two persons came after 15 minutes and upon asking, they stated that when firing was started, they ran away from the spot, one of them was the Incharge of that police party and another was the driver of the pick-up van and, therefore, the statement of incharge Bheru Lal and driver are false. Learned counsel stated that in these circumstances, the statement of Bheru Lal is not reliable; that there were 127 witnesses in the list of witnesses and out of 127 witnesses, only 85 witnesses have been examined till date, meaning thereby, that 42 witnesses are yet to be examined. Learned counsel also stated that the accused-petitioner is behind the bars since 5/9/2011 (approx. 10 years); and that further trial will take time, therefore, benefit of bail may be granted to the accused-petitioner.