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Judgment
B.J. Shethnan, J.—Mr. Saiyed, learned advocate, appearing for the petitioners has raised four contentions in this application, viz. (1) that it
is a pure case of circumstantial evidence; (ii) that the injured witness Jabbar himself had refused to identify the accused in a test identification
parade; (iii) that the FIR does not disclose the names of the accused nor the description of the accused : and (iv) that the other assailants viz. the
driver of Hero Honda and the scooterist are not arrested by the police.
I would like to take up the last contention first when he had submitted that the driver of Hero Honda and the scooterist, who had also
belaboured the deceased along with the present petitioners and therefore the deceased died, are not arrested, would itself be a ground for not
releasing the accused. Therefore, this contention of Mr. Saiyed fails and is rejected.
The second contention regarding the circumstantial evidence that the names of the accused are not disclosed in the FIR, nor is the description of
the accused given in the FIR. The learned Additional Sessions Judge, after considering the statements of the various witnesses has come to the
conclusion that there is prima facie material against the accused. Therefore, there is no merit in the submission raised by Mr. Saiyad, that no
description nor the description of the accused were given in the FIR. In fact, there is statement of Amin Haji Adamji, who had identified all the
three accused persons who were quarrelling with the deceased. The learned Judge was, therefore, right in coming to a conclusion that there is a
prima facie case against the petitioner-accused. In the circumstances, I do not see any reason to interfere with the impugned order passed by the
learned Judge.
The third ground raised by Mr. Saiyad is that only injured witness Jabbar who himself refused to identify the accused in a test identification
parade and therefore, the accused should be released on bail, cannot be accepted for the simple reason that this point was not specifically raised
before the learned Addl. Sessions Judge. However, Mr. Saiyad has made a statement in the application that on instructions from the Advocate
who appeared before the Lower Court though this point was specifically argued, the learned Additional Sessions Judge has not specifically dealt
with. Now, even assuming for the sake of argument that this point was urged before the learned Additional Sessions Judge, in my opinion, this fact
itself shows that if the petitioners are released on bail, then they are likely to tamper with the evidence, because, the injured witness himself was
beaten along with the deceased, but still in the test identification parade, he refused to identify the accused.
It is true that this is a case of circumstantial evidence but there is a prima facie material against the petitioners to hold that there is a prima facie
case against them and, therefore, this Court cannot release the petitioners on bail.
Therefore, I do not see any merit in any of the aforesaid contentions raised by Mr. Saiyad. This application is, therefore, rejected.
After I have passed this order, Mr. Saiyad requested to withdraw this application. Permission is granted. This application, therefore, stands
rejected as withdrawn.