MAN SINGH Vs. GANGA SINGH

JUDGEMENT

(1.) This application has been filed by the complainant under S. 439(2), Cr.P.C. for cancellation of bail granted to accused non-petitioner No. 1, Ganga Singh, by the Sessions Judge, Dholpur. For deciding this, it is necessary to go into the facts of the case as well as to appreciate the legal position which can be said to be relevant.

(2.) On 11/01/1987 an incident occurred in village Peeparowa, Police Station, Sepau. At about evening time Ganga Singh was beating Nathi's wife. Megh Singh came there and tried to stop Ganga Singh but the latter started absuing him. Some others intervened and tried to stop him but then Ganga Singh, Mahendra Singh, Ramendra Singh and Kalyan Singh all started firing with guns and Katta. Ganga Singh fired a 12 bore gun in the stomach of Chhitariya, Mahendra Singh fired at Har Pyari, Ramendra Singh fired at Premvati and Kalyan Singh fired a Katta at Surendra. Report about the incident was lodged by Man Singh, who is relation of these persons. A case was registered under Ss. 307, 323 and 324 and 34, IPC. Subsequently Chhitariya died and the Offence under S. 302 was also added. After registering the case the police inspected the site and recovered an empty cartridge of 12 bore gun from the site. On medical examination Har Pyari and Surendra Singh were found to be having gun shot injuries. Premvati also had an injury. Chhitar Singh died as a result of gun shot injury. All the accused except Ganga Singh were arrested and released on bail on different dates, after they were interrogated and recoveries were made at their instance. Challan in the case was presented after investigation in April, 1987 and at that time non-petitioner No. 1 Ganga Singh was shown as absconding. More than a year after the incident he applied before the Sessions Judge, Dholpur for grant of anticipatory bail. First he was released on interim bail and then the order for his release under S. 439, Cr. P.C. was passed on 6/05/1988. Though it has been shown that he (Ganga Singh) surrendered and the bail application was under S. 434, Cr.P.C. but on query I have been informed that he was never taken into custody, Actually till the decision of the bail application he was released on interim bail. While granting bail to Ganga Singh the learned Sessions Judge has observed that there are two types of witnesses against Ganga Singh, one set of witnesses who have deposed that he fired a gun due to which Chhitriya died and another set of witnesses who say that Ganga Singh did not fire. Considering this situation the learned Sessions Judge considered it proper to release him on bail.

(3.) I have called for the case diary and have perused the same. The learned counsel for the complainant has contended that there are eyewitnesses to the occurrence who have all stated that Ganga Singh had fired at Chbitariya and after the incident he remained absconding for about 16 months. Even the challan was filed showing him as an absconder and he should not have been granted the indulgence of bail. It is contended that the bail granted by the Sessions Judge is improper. My attention has also been invited to the statements of the five witnesses who were examined by the police after Ganga Singh was released on interim bail. It is in these statements that the witnesses deposed that Ganga Singh had not fired. These witnesses the Prithvi Raj Singh, Brijraj Singh, Indu Singh, Durag Singh and Sangrama Singh. Their statement is that on 10-11-1988 a Pahchayat of Rajput Samaj was held and in this meeting Chhotu Singh was confronted with the question as to how his party had taken the name of Ganga Singh as the person who had fired at Chhitariya when in fact Ganga Singh had been on the ground floor and Chbitariya was on the top, and was not in a position to fire. Upon this Chhotu Singh told that Ganga Singh was the head of his family and therefore he had been involved in the case so that he would not be able to defend the accused. This is the second set of evidence to which the learned Sessions Judge has referred while considering it proper to grant bail to Ganga Singh. It is also contended that after the release of Ganga Singh he is interfering with the investigation and further witnesses were examined after challan in the case had been presented, merely with a view to weaken the prosecution case.