Shoyab vs State Of Rajasthan

Kuldeep Mathur, J

This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.293/2022, registered at Police Station Marwar Junction (Pali), District Pali, for offences under Sections 302, 307, 325, 323 & 341/120B IPC.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

The petitioner is in custody in 11.04.2023 in connection with the murder of one Tajudin and for brutally assaulting Imran Khan and Rais Khan.

Learned counsel for the petitioner straightaway drew attention of the Court towards the statement of injured- Rais Khan recorded under Section 161 CrPC and submitted that as per injured, on 10.11.2022, when he along with Tajudin and other injured Imran Khan was riding on a motorcycle, his motorcycle was intentionally hit by a vehicle (Bolero Camper), in a predetermined manner, by the vehicle in which Abrar Khan, Firoz, Sameer and Shahrukh were sitting. As per the injured, the present petitioner, one Babu Khan, Ajaz and Shehzad joined the above named accused persons at the place of incident in another vehicle and thereafter, brutally assaulted the deceased and above named co- occupants of the motorcycle with iron rods and lathis etc. Learned counsel submitted that the petitioner has been falsely implicated in the present case.

Learned counsel prayed that the petitioner may be enlarged on bail on the following grounds:-

A) The petitioner has not been named in the FIR.

B) As per injured, the petitioner joined other accused persons at the place of incident by using another vehicle whereas, investigating agency has recovered only one Bolero Camper and has not found the presence of the petitioner to be substantiated through reliable evidence and has filed charge sheet against him under Section 120B IPC.

C) Drawing attention of the Court towards the statements of eye-witnesses of the incident namely Ishwar Singh, Lumba Ram, Megha Ram, Hema Ram, learned counsel submitted that these witnessed in their statements recorded under Section 161 CrPC, have stated that the motorcycle was hit by Bolero Camper, in which co-accused person was seen sitting, in other words, the petitioner has not been named by the eye-witness to be an occupant of the vehicle.

D) No weapon has been recovered at the instance of the petitioner.

E) Call details of the petitioner sans transcript cannot be considered as a corroboratory evidence sufficient to infer role of the petitioner in hatching a conspiracy to commit the alleged crime.

Learned counsel lastly submitted that the injured has presented an exaggerated version of the incident and in an attempt to over-implicate other persons, has named the present petitioner due to previous animosity between the parties, though no reliable or cogent evidence is available on record indicating involvement of the petitioner in commission of the crime.

On these grounds, learned counsel for the petitioner implored the Court that the petitioner may be enlarged on bail.

Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the bail application and submitted that statements of injured Imran Khan under Section 161 CrPC have not been recorded yet as he has been assaulted so brutally that he is still unconscious and not in a position to make statements.

Drawing attention of the Court towards the charge sheet, learned Public Prosecutor submitted that the petitioner was conducting recce of the victims and was constantly in touch with other co-accused plying the vehicle (Bolero Camper), thus the petitioner had played an active role in commission of alleged crime.

Learned Public Prosecutor and learned counsel for the complainant further submitted that looking to the seriousness of the accusations against the present petitioner, he does not deserve to be enlarged on bail.

Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the complainant. Perused the material available on record.

Having gone through the FIR, challan papers and statements of independent eye witnesses recorded under Section 161 CrPC, this Court prima facie finds that the petitioner who is aged about 19 years is in judicial custody since 11.04.2023; the allegation against the present petitioner as per challan submitted by the investigating agency before competent criminal court is of conducting recce. Admittedly, in the challan papers, the presence of the petitioner has not been shown at the place of incident; the allegation of hitting motorcycle with an intention to kill the riders of the motorcycle has been levelled against other co-accused persons, who were occupants of the vehicle (Bolero Camper); no recovery has been effected at the instance of the present petitioner; the petitioner has no criminal antecedents, thus, this Court is inclined to enlarge the petitioner on bail.

Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Shoyab S/o Sh. Shahzad Khan arrested in connection with F.I.R. No.293/2022, registered at Police Station Marwar Junction (Pali), District Pali, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.

It is however, made clear that findings recorded / observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudice by the same.