IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39846 of 2009 1.UPENDRA SAHANI S/O Garib Das 2. Girja Sahani S/O Ganesh Sahni Both the villager of Brahma Tola, P.S. Lakhaura, District-East Champaran. Versus STATE OF BIHAR ----------- 2 19/11/2009 Heard counsel for the petitioner and counsel for the State. The two petitioners face prosecution for the offence under sections 302 and other allied sections of the Indian Penal Code. Both of them are named accused in the First Information Report wherein it has been alleged that they along with three others had forcibly taken away the husband of the Informant whereafter he was severely assaulted by all of them in the house of one Garib Das as a result whereof he ultimately succumbed to his injuries. Counsel for the petitioners’ would submit that the police did not find any mark of blood at the alleged place of occurrence and when the prosecution had also not alleged any specific overtact or even any weapon in the hands of the petitioners, the fact that the petitioners have got no criminal antecedent will have a relevant bearing at least for their grant of bail. Counsel for the petitioners would further submit that actually there was a title suit pending between the parties and it is on account of the aforementioned litigation that the petitioners have been falsely implicated in this case. This Court would find that the Informant had given earliest version at a point of time when her husband was only taken 2 away and she was not even aware of his being killed. In fact in such version not only the petitioners but all five others had been only alleged to have forcibly lifted the husband of the Informant and taken to him in the house of Garib Das where he was subsequently assaulted indiscriminately and mercilessly as would transpire from the statement of other persons examined by the police in course of investigation. In that view of the matter, the absence of allegation of weapons inlthe hands of the petitioners would not much relevance when the injury report goes to show that the death of the deceased was caused by the injuries on his person sustained due to assault on him. This Court would further find that co-accused Garib Das having identical allegation when he had surrendered or had been arrested in the year 2005 itself his prayer for bail was ultimately allowed by this Court vide an order dated 24.8.2007 after its being twice rejected earlier which would mean that Garib Das had to remain in custody for the same allegation for a period of at least two years. The other named co-accused persons in the First Information Report including the petitioners who had sought anticipatory bail were not successful and in this background the petitioners remaining away from the courts for a period of four years would not augur well for release on bail on merely completing a few months of their judicial custody. This Court is also not impressed with the explanation of illness of petitioner no.1 inasmuch as the prescriptions of a private doctor are also not supported by any further accompanying pathological report which could bear it out that petitioner no.1 was 3 suffering so badly on account of his alleged disease of Tuberculosis (though the symptom of his disease in prescription of gas formation or weakness) that he could not have surrendered earlier. Sofar petitioner no.2 is concerned there is no explanation of even a feigned illness. Consequently, this Court would find that the petitioners have actually remained absconding for a period of over four years before surrendering in the court. Consequently, the prayer for bail of the petitioners is rejected for the present. They may renew their prayer for bail after completing their judicial custody for a period of two years as was done in the case of co-accused Garib Das and that too if their trial is not taken up and concluded in the intervening period only due to laches on the part of the prosecution. Abhay Kumar (Mihir Kumar Jha, J.)