ARVIND KUMAR @ TILLU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) It has been argued by Shri Bajwa that even if the accused-petitioner is taken to have caused the fatal injury by 'gupti' in the abdomen of the deceased, Kailash, on the basis of the statement of one of the prosecution witnesses namely Kailash PW/5, the deceased himself was having lathi in his hand and he had first attacked the father of the petitioner and that the petitioner and co-accused Mukesh came later on. The argument has also been raised regarding exercise of right of private defence and it has been submitted that two co-accused namely Ram Sahay and Santosh had sustained grievous injuries in this very incident. It has also been submitted that the petitioner himself sustained four injuries including one on the head, all being simple. It has also been submitted that the accused-petitioner was arrested way back on 10-9-1991 and he is a young boy of 19 years and has already remained in jail for about 71/2 months.

(2.) Shri B.L. Awasthi, Addl. Public Prosecutor and Mr. N.A. Naqvi. learned counsel for the complainant have submitted that the question of exercise of right of private defence shall be determined in the trial. Mr. Naqvi has submitted that by now 8 witnesses have been examined and witnesses which now remain to be examined are formal witnesses and the Doctor concerned and only one more eye-witness has to be examined. Mr. Naqvi has also submitted that other co-accused persons released on bail tried to intimidate the prosecution witnesses and F.R. has already been given in the cross case filed by the accused-petitioner and, according to him, no person of the accused party sustained injuries. Mr. Naqvi has cited before me AIR 1987 SC 1613, in which bail order had been cancelled because there was likelihood of intimidation of the witnesses. He has also submitted that according to the witnesses examined so far, fatal injury was caused by the petitioner resulting into the death of Kailash.

(3.) In the facts and circumstances of the case, when according to Mr. Awasthi and Mr. Naqvi only formal witnesses remain to be examined, the question of intimidation of witnesses looses importance. It is a matter in which filing of cross-case is admitted. The accused-petitioner has already remained in jail for 71/2 months and he is a young boy of 19 years.