Mahendra vs State Of Rajasthan

Dinesh Mehta, J

The second bail application has been filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) in connection with FIR No.301/2022, registered at Police Station Gangrar, District Chittorgarh for the offences under Sections 302/120-B and 201 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

The first bail application being (S.B. Criminal Miscellaneous Bail Application No. 13197/2023) filed on behalf of the applicant was dismissed as withdrawn with a liberty to file afresh once statement of the last seen witness Nagraj S/o Kashi Ram is recorded, on 12.12.2023.

Learned counsel for the applicant submitted that there is contradiction in the statement of said eye-witness Nagraj given in the Court, if the same are read in juxtaposition with the statement recorded under Section 161/164 of the Cr.P.C.

Learned counsel for the applicant invited Court’s attention towards the cross-examination of the said eye-witness Nagraj and highlighted that in his cross-examination, the eye-witness – Nagraj has said that he was tutored by the Police Officer.

It was also argued by learned counsel for the applicant that there is delay of more than 20 days in lodging the FIR.

In support of his contention, learned counsel relied upon the judgment passed by Hon’ble the Supreme Court in the case of Dinesh Kumar Vs. State of Haryana, reported in 2023 AIR (SC) 2795 and submitted that delay in lodging the FIR is fatal to prosecution’s case.

It is to be noted that the applicant is being prosecuted for the offence punishable under Section 302 of the IPC on the basis of the circumstantial evidence available in the prosecution’s case.

Nagraj is the witness of the last seen. There are other incriminating evidences. The testimony of other witnesses are yet to be recorded.

So far as statement of Nagraj is concerned, he has been consistent in his Court’s statement so far as the applicant being lastly seen with the deceased is concerned. Minor variation or discrepancy in the evidence of Nagraj, in no manner demolishes his culpability or supports the case of the applicant for grant of bail.

So far as the argument of learned counsel for delay in lodging the FIR is concerned, the material available on record clearly shows that the deceased disappeared from his house on 16.11.2022, whereafter, his relatives started searching for him and FIR came to be lodged, only when the dead body of the deceased was recovered from an abandoned well.

In the opinion of this Court, delay in registration of the case is of hardly any relevance so far as applicant’s bail is concerned.

Nothing substantial has come on record in the statement of Nagraj. The second bail application filed under Section 439 of the Cr.P.C. is, therefore, dismissed.