BHUDEV Vs. STATE OF RAJASTHAN AND ORS

JUDGEMENT

(1.) This is second application filed by petitioner praying for his release on bail pending trial. Petitioner is accused of committing offence under Sections 143, 341, 323, 307 and 302 IPC. His first Bail Application No.8828/2012 was dismissed by this court vide order dated 14.09.2012, however, with liberty to again apply for bail before the trial court after statements of eye witnesses are recorded and prosecution was directed to examine those eye witnesses on priority basis.

(2.) Facts giving rise to present case are that one Mukat Singh submitted a written report to Station House Officer, Police Station Kumher, District Bharatpur, on 22.09.2009 alleging that Munshi S/o Kanhaiya, Narain Singh, Natthan, Munshi S/o Buddha, Smt. Nattho, Smt. Rajjo, Rinku, Jitendra, Ashok, Bhudev (present petitioner) and Chandra armed with iron rods, 'lathis' and 'pharsa' came to agriculture field of his brother Kalua. They tried to forcibly cultivate the agriculture field with their tractor. On knowing this, his nephew Shiv Kant and Lokendra went to the agriculture field to prevent them from doing so. The informant also followed them. The accused suddenly attacked them. Rinku inflicted a blow with iron rod on the head of Lokendra. Petitioner Bhudev caused a pharsa blow on the head of Lokendra. Lokendra fell down. Accused Ashok inflicted blows with iron rod and remaining all accused inflicted lathi blows. Shiv Kant tried to save him. Whereupon accused opened fire with country made gun. Rinku inflicted a blow with iron rod on the head of Shiv Kant, which he saved by hand resulting into fracture thereof. When Shiv Kant fell on the ground, all the accused started beating him with iron roads, pharsa and lathis. Informant Mukat Singh and Yogesh intervened to save them. Injured were immediately rushed to the hospital at Bharatpur wherefrom they were referred to S.M.S. Hospital, Jaipur. Injured Lokendra succumbed to his injuries. Police after investigation, filed challan against accused Munshi and Narain Singh under Sections 143, 323, 341, 325, 307, 302, 120B IPC on 22.12.2009 and investigation against all remaining accused, including accused-petitioner, was kept pending under Section 173(8) of the Cr.P.C. Co-accused Natthan S/o Damodar was arrested on 30.08.2010 and supplementary charge-sheet against him was filed under Sections 143, 323, 341, 325, 307, 302, 120B IPC, on 22.11.2010. Co-accused Munshi S/o Buddha was arrested on 04.05.2011. He was granted bail by this court. Thereafter, co-accused Nattho Devi, Rinku, Munshi, accused-petitioner Bhudev, Ashok were arrested on 26.06.2012 and supplementary charge-sheet was filed against them too under Sections 143, 323, 341, 325, 307, 302 and 120B IPC and against co-accused Jitendra under Sections 143, 323, 341, 325, 307, 302, 120B IPC and Section 3/25 of the Arms Act, on 21.09.2012.

(3.) After dismissal of the bail application of the petitioner by this court on 14.09.2012 on merits, accused-petitioner applied for bail before the trial court invoking the default clause under Section 167(2) of the Cr.P.C. on 04.10.2012 contending that though supplementary charge-sheet against him was filed before the court of Magistrate on 21.09.2012, only a day before the last date of expiry of the period of 90 days prescribed under Section 167(2), supra, but cognizance of the offence was not taken by the Magistrate against accused-petitioner till date of filing of the bail therefore the accused-petitioner should be release on bail. Learned trial court rejected the said application on 04.10.2012.