Ajay Rinwa @APPELLANT@Hash State of Rajasthan & Ors.

Being arrested in furtherance of investigation into FIR No.68/2017, registered at Police Station Dudhwa Khara, District Churu, for alleged offences

under Section 302, 120-B IPC, accused-petitioner has laid this bail application under Section 439, Cr.P.C. Â

Police after investigation submitted charge-sheet for the aforesaid offences against present petitioner and other accomplice Surjeet for offence under

Sections 302, 147, 148 and 149 IPC and Section 27 of the Arms Act but keeping investigation pending against other accused-persons.

Learned Senior Counsel Mr. Mahesh Bora submits that petitioner is not named in the FIR as assailant but sought to be implicated as conspirator

alongwith Kamal Ramsara for avenging old rivalry with deceased Mahendra. Learned Senior Counsel contends that while submitting charge-sheet

against petitioner, police has expressed its doubts about involvement of other accomplice Kamal Ramsara.  Learned Senior Counsel would

contend that in fact during investigation no tangible evidence has come to the fore for constituting offence of criminal conspiracy against petitioner

within the meaning of Section 120-A IPC. Mr. Bora has argued that the very edifice of charge-sheet against petitioner for aforesaid offences is the

statements of Ramchandra Kasba recorded during investigation. Learned counsel submits that those statements cannot be prima facie construed as

inculpatory to show nexus of petitioner with the alleged offence as one of the conspirators. Learned Senior Counsel has also submitted that during

investigation nothing has revealed to show any communication of the petitioner with assailants (accused)Â ao as to establish his connivance for doing

an illegal work. While referring to the statements of Vikram recorded under Section 161 Cr.P.C., learned Senior Counsel argued that his statements

are nothing but hearsay evidence, therefore, not inspiring confidence. Learned Senior Counsel, while taking a dig at the statements of Ramchandra

Kasba, submits that those statements were recorded four months after the incident, therefore, prima facie, it is a clear case of false implication.Â

While referring to pending criminal cases against petitioner, which is precisely the ground set out in the order of learned Sessions Judge for nixing the

bail plea of petitioner, learned Senior Counsel has urged that same cannot be construed as a plausible ground sans any cogent evidence showing his

involvement in the alleged offences.   Further elaborating his submission in this behalf, learned Senior Counsel submits that out of 19 cases, in 12

cases petitioner is acquitted and in the case shown at item No.7, he has been acquitted for offence under Section 308 IPC and for rest of the offences

extended benefit of probation.  In totality, learned Senior Counsel contends that only three cases are pending against petitioner besides the present

case. Lastly, learned Senior Counsel argues that in the backdrop of peculiar facts and circumstances of case, when during investigation no plausible

evidence showing

involvement of the petitioner in alleged offences is forthcoming, it would not be appropriate to keep him in custody as he is in custody since last more

than five months.

Per contra, learned Public Prosecutor has vehemently opposed bail plea of the petitioner. Â It is submitted by learned Public Prosecutor that petitioner

is habitual offender and in the instant case, he was master-mind of the entire plot.  Learned Public Prosecutor has placed reliance on the

conclusion of chargesheet in this behalf to substantiate his argument.  While referring to the statements of witnesses Vikram Singh and Anil,

besides corroborating statements of Gopal Ram, learned Public Prosecutor submits that on the strength of their statements, petitioner is not entitled for

bail. Â

Mr. Dhirendra Singh, learned counsel for the complainant, submits that as the principal accused is yet to be apprehended, it would not be appropriate

to enlarge the petitioner on bail.

Learned counsel for the complainant further submits that in criminal conspiracy it is not possible to collect direct evidence and the same is to be

inferred from the circumstances available, inasmuch, in the instant case, there was previous enmity between deceased and the petitioner. Â

Mr. Singh further contends that the statements of witnesses recorded during investigation are prima facie relevant to show motive and preparation of

the accused-petitioner for commission of offence under Section 8 of the Evidence Act.

I have bestowed my consideration to the arguments advanced at Bar and perused the materials available on record.

Upon perusal of the materials available on record including the order passed by learned Sessions, it is evident that learned Sessions Judge was

dissuaded to grant bail to the petitioner by relying on pending criminal cases against him.  True it is that at the stage of consideration of bail plea

Court is not obliged to examine the merits of the case but then Court can very well look into the material available on record showing prima facie

involvement of the incumbent accused in commission of alleged offences. A very significant fact, that petitioner was not named as assailant in the

FIR, and there is no evidence to show his presence at the place of crime, cannot lose sight of the Court while considering his bail plea on the

touchstone of available material to prove his nexus with the commission of alleged offences. It is noteworthy that mere pendency of other criminal

cases against an accused cannot be a sole ground for rejecting bail in absence of prima facie evidence showing his involvement in commission of

offence. Although in the instant matter during investigation some evidence is collected against accused-petitioner but while refraining to make any

comment on the said material, at this stage, I feel inclined to take a view favouring the cause of petitioner.

Resultantly, the instant bail application is allowed and accused-petitioner Ajay Rinwa S/o Mahesh Rinwa, arrested in connection with F.I.R.

No.68/2017 of Police Station Dudhwa Khara, District Churu, is ordered to be released on bail; provided he furnishes a personal bond of Rs.50,000/-

with two sureties of like amount including one local surety to the satisfaction of learned trial Court with the stipulation to appear before that Court on

all dates of hearing and as and when called upon to do so.