IMRAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for petitioner as well as learned Public Prosecutor and perused material made available to me during course of arguments.

(2.) CONTENTION of learned counsel for petitioner is that the complainant originally filed first information report against more than 25 persons for offence under Sections 307, 323, 341 and 143 IPC. During the course of investigation, however, deceased Usman died and therefore the offence under Section 302 IPC was added for the purpose of investigation. In fact when the incident took place the police immediately arrested the petitioner under Section 151 Cr.P.C. along-with certain others. All the witnesses in their statements have assigned the fatal injury on the head of the deceased Usman to co-accused Shakil S/o Rajadin. However, in the first information report it was alleged that after Usman received injuries of dharia on his head by co-accused Shakil and fell down, co-accused Nakim, Ashfak, Afshar and Rizwan subjected him to beating by lathis, but subsequently in statements under Section 161 Cr.P.C. it was alleged that Ashfaq, Rafiq, Raies and Imran inflicted blows by lathis after he fell down. CONTENTION of learned counsel for petitioner is that in the injury report, only three injuries were found on the person of injured Usman; one was lacerated wound on the parietal occipital part of skull, the second was lacerated wound also on parietal occipital part of skull and third one was a abrasion on the left forearm. However, after his death, his body was subjected to postmortem report. Injuries no.4 to 8 were additionally shown which were all abrasions whereas injuries no.1 and 2 were stitches wound of the corresponding injuries no.1 and 2 of the injury report and injury no.3 therein was the post operative stitches wound which was the result of the postmortem. Learned counsel submitted that the petitioner was already arrested under Section 151 Cr.P.C. and therefore recovery that has been shown at his instance is illegal as it is stated in the recovery memo that the lathi that was lying in the 'maalkhana' of the Police Station has in fact been recovered from the petitioner. It is contended that the petitioner has only three cases previously registered against him, which are for offence under Sections 323, 325, 341, 436 and 452 IPC etc., but only because of his two brothers Mustu and Ashraf and father Afshar have 9, 16 and 10 cases, respectively against them, that should not be a reason not to extend the benefit of bail to him and opportunity to join the mainstream. Challan has already been filed. Petitioner is in jail for last about five months. Trial may take a long. Petitioner would undertake not to indulge in any offence in future and would maintain good conduct, if granted benefit of bail. There is no chance of fleeing the petitioner from justice. Learned Public Prosecutor as well as learned counsel for complainant strongly opposed the bail application and argued that an unarmed person was encircled by all the accused including the petitioner and was subjected to severe beating. Co-accused Afshar, father of the petitioner, has 10 cases, his brother Mustu has 9 cases and another brother Ashfaq has 16 cases previously registered against them. Petitioner is therefore a member of the family of criminals and therefore he should not be extended the benefit of bail even if the challan has been filed.