Rajendra Singh and Another vs State of Rajasthan

P.C. Jain, J.—The petitioners have filed this III hail application u/s 439, Cr.P.C. The accused petitioners along with other accused are facing a sessions trial in case No. 9/96 State v. Ramniwas and Ors. pending before the Additional Sessions Judge, Nagaur Camp Deedwana for offences under Sections 364, 365, 147 and 302, I.P.C.

The brief facts of the case are that the F.I.R. in the case was lodged by Sugan Singh on 14-9-1995 at P. S. Khunkhuna in which it was alleged that his son Tejraj, a student of 10th class, had gone to take supplementary examination that was held on 28-8-1995 in Deedwana High School. After the examination was over, he returned from there but did not reach his house. He searched for him at various places but without any success. When he made inquiries he came to know that Tejraj alighted from the train at Chhoti Khatu Railway Station and from there the accused persons physically lifted him in a jeep and fled away. Thereafter his dead body was recovered from a well on 25-12-1995 at the instance of accused Chunaram. Since the clothes as worn by Tejraj were found on the dead body it was presumed that the person died was none other than Tejraj. The learned Public Prosecutor has also submitted that a D.N.A. test has also been carried out and it was established that he was the son of Sugan Singh. Accused Chunaram and Ramnarain were arrested on 17-12-1995, Prabhuram on 6-1 -1996 and the other accused on 1-1-1996.

Learned counsel for the petitioners has submitted that though previous applications on behalf of the petitioners have been dismissed but he would like to highlight that there is absolutely no case u/s 302, IPC even prima facie made out against the accused. He submitted that all the eye-witnesses have been examined and the Court is in a position to see whether there is any prima facie case against the petitioners for the offence u/s 302, IPC. He submitted that the first eye- witness Ramchuudra. P.W. 1 has turned hostile and has not supported the prosecution case at all. Another eye-witness Madanlal P.W. 16 has stated that on the day of occurrence he saw Nortaram, Shrawan, Ramchandra and Prakash standing near the jeep. He further said that Chunaram, Nimbhuda and Prabhuram lifted Tejraj and put him in the jeep and fled away. Learned counsel has submitted that in his statement u/s 161, Cr.P.C. (Ex.D-13) he does not name any accused except Chunaram. Mohan Singh PW, 20, another eyewitness, has named Prabhuram, Prakas and Ramchandra as the persons who caught hold of Tejraj and put him in the jeep but in his statement u/s 161, Cr.P.C, (Ex.D-18) he has stated that he had gone to Kerala. He has also deposed that he saw Tej raj on 28-8-1995 whereas the occurrence is said to be of 26-8-1995. He has also not stated in his police statement that Praburam, Prakash and Ramchandra caught hold of Tejraj. Rewant Singh P.W. 21 has named all the 10 accused persons who caught hold of Tejraj and in Court he could not identify any of the accused persons. Similar is the statement of Praluilad Singh P. W. 22. Learned counsel has, therefore, submitted that from the above testimony of the eye-witnesses no offence u/s 302, IPC can be said to have been made out against the accused even prima facie. Even presuming that the statement of these witnesses are correct to the effect that the petitioners caught hold of Tejraj and put him in the jeep and then fled away, only an offence u/s 364, IPC is said to be made out. Learned counsel has cited the case of Narain Singh Chandrabhany v. State of Rajasthan 1982 Cri LR (Raj) 588.

Learned counsel for the petitioners then prayed for the release of the accused on the . ground that this trial has been delayed beyond expectation. The accused-petitioners have been behind the bars for the last more than two years. Out of the list of 75 witnesses only 37 witnesses have examined. While narrating the background of the case learned Counsel has invited my attention to the fact that the prosecution is bent upon delaying the trial of the case. When the investigation was complete and the challan was filed, the accused were not furnished the relevant copies of the statements recorded during investigation u/s 173(5), Cr.P.C. The accused lodged their legitimate objection because the above statements were absolutely necessary to prepare their defence. The Court passed a legal order directing the prosecution to supply all the copies as envisaged in Sub-section (5) of Section 173, Cr.P.C. It was a simple order passed in accordance with law and there ought not to have been any objection for the prosecution to comply with the above order but suprisingly enough the State took up the matter and eventually the matter was decided by Hon''ble Justice Mohd. Yamin who directed in his order passed u/s 482, Cr.P.C. to furnish the accused the relevant copies of the statements. The application of the State was dismissed. He also submitted that an application u/s 308, Cr.P.C. was made to make witness Ramchandra an approver. The prosecution did not succeed and a lot of time was wasted. The case then could not make progress when malkhana articles were not produced. Learned counsel for the petitioners has relied on certain judgments of the Supreme Court and this High Court. In Kadra Pehadiya and Others Vs. State of Bihar, the Apex Court recognised the right of the under trials to have a speedy trial and conclusion of the case within reasonable time. Article 21 of the Constitution of India and ILO conventions were referred in this connection and the Apex Court emphasised true compliance of the spirit of the above legal provisions. This Court has also taken the same view in Jawahar Singh v. State of Rajasthan 1989 Raj. Cri C 180 and Munna alias Mahendra v. State of Rajasthan (1989) 1 Raj LW 54.

Learned Public Prosecutor and the learned Counsel for the complainant have vehemently opposed the bail application on the ground that the petitioners have made two previous applications which have been dismissed. Learned counsel has drawn my attention to the fact that very recently the application of Rajendra Singh was dismissed. In all these applications learned counsel for the petitioners made similar arguments regarding the merits of the case. When the above applications were decided, the statements of the eye-witnesses had been recorded and they have been taken into consideration. This Court declined to make a meticulous assessment or appreciation of evidence to prejudge the trial. The situation as regards this aspect of the matter has not at all changed.

Regarding the delay learned Public Prosecutor has submitted that the learned Additional Sessions Judge after instructions from this Court, has been taking up this case on priority basis but the difficulty is that he is holding Camp at Deedwana for 12 days in a month and on every sitting two days are fixed and 2 or 3 witnesses per day are being requisitioned. Regarding the delay in furnishing the copies he submitted that the State Government felt aggrieved by the order of the learned Magistrate and a petition u/s 482, Cr.P.C. was filed. Learned Public Prosecutor has emphatically submitted that the prosecution is not making any delay in the progress of the trial.

I have considered the rival contentions. It cannot be gainsaid that learned counsel for the petitioners, in the past, while arguing the previous applications, invoked the indulgence of the Court to release the accused on bail on the ground that no case at all is made out u/s 302, IPC. The statements of the eye-witnesses were referred and and criticized and it was vehemently contended that from the testimonies of these witnesses the offence u/s 302, IPC could not be made out. It was also argued that at the most an offence u/s 364, IPC could be made out for which bail cannot be refused. I had the occasion to deal with a few applications and I see no reason not to stick to my previous view and I am not inclined to consider the evidence and express my opinion thereon.

I have given my thoughtful consideration to the plea of delay in the trial raised by the learned Counsel for the petitioners. I may refer to the cases cited by the learned Counsel for the petitioners. In Kadra Pehadiya and Others Vs. State of Bihar, the fact were that the under trial prisoners, young boys of 12-13 years when arrested, were languishing in jail for over 8 years. It was held that Article 21 of the Constitution of India applied. The Apex Court also made reference the Prosecution Regulation and ILO Convention and held that in the circumstances of the case they were violated. The Apex Court also made reference to Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, in which it was laid down that speedy trial is a fundamental right of an accused implicit in Article 21 of the Constitution of India. In Jawahar Singh case 1989 Raj Cri C 180, this Court considered the bail application and held that gravity of the offence is one of the considerations but not the sole consideration while deciding the bail application. In that case the petitioner had been in jail for last 18 months and there was no allegation that if released on bail he would temper with the evidence. The accused was ordered to be released on bail on ground of delay.

In Munna alias Mahendra'' s case 1989 (1) Raj LW 54 (supra), this Court and other High Courts and held that the accused has got a right to speedy trial under Article 21 of the Constitution of India and if there is a delay or the trial is likely to be delayed beyond reasonable limit, the accused must be released on bail. In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, Their Lordships while emphasising the need of speedy trial made the following salutary observations :-

There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under-trial prisoners and legal and that is notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for long number of years. Even a delay of one year in the commencement of trial, is bad enough.... Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.

After quoting Article 3 of the European Convention on Human Rights which provides that every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial, their Lordships further observed :-

though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another,

The Supreme Court in State of Bihar Vs. Uma Shankar Ketriwal and Others, observed that there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. Both these cases were referred to and relied upon by the Full Bench in Madheshwardhari Singh and Another Vs. State of Bihar, In that case it was observed that in all criminal prosecutions, the right to a speedy trial is now an unalienable fundamental right of the citizen under Article 21 of our Constitution and this cannot be allowed to be whittled down on any fanciful ground of the hoary origin of this right in the constitutional history of Great Britain and America, nor considerations of affluence of developed countries or even remotely relevant or germane in this context. It was further observed that fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically irrespective of their nature.

Now coming to the facts of the present case it has to be considered that the trial is not proceeding speedily. Admittedly both the petitioners have been behind the bars for more than two years. Only 37 witnesses out of total list of 75 witnesses have been examined. The prosecution can also not absolve itself from contributing to the delay of the trial of the case. The apprehension of the learned counsel for the petitioners that the examination of the remaining witnesses can cause as much time cannot be said to be without foundation. The delay in trial is also a consideration germane to the consideration of the bail.

In view of the above case law as handed down by the Supreme Court and followed by this Court and other High Courts, in the facts and circumstances of the case, I accept the bail application of the petitioners and it is hereby ordered that the accused-petitioners may be enlarged on bail provided they furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) together with two sureties of Rs. 10,000/- (Rupees Ten thousand only) each to the satisfaction of the trial Court for their appearance in the trial Court during trial and as and when called upon to appear.