IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.M.No.4691-M of 2011 Date of decision : 5.4.2011 Rakesh Kumar ....Petitioner Versus State of Punjab ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. R.K.Gupta, Advocate for the petitioner. Mr. Navdeep Sukhna, AAG, Punjab for the respondent. ..... MAHESH GROVER, J. This is a petition under Section 439 of the Code of Criminal Procedure for release of the petitioner in terms thereof in a case registered vide FIR No.236 dated 23.10.2008 under Sections 302, 148, 149 IPC, at Police Station Salem Tabri, Distt. Ludhiana. It has been alleged by the prosecution that on 13.9.2008 Mahipal, Ranjit Singh and Gurdeep Singh, residents of Basant Vihar had a fight with Bablu, Sonu, Baba Bindri, Monu Suniara, Gheesi and others. A case under Section 307 IPC was registered at Police Station Salem Tabri, District Ludhiana regarding this incident. Vijay Kumar was a witness in the said case as he had suffered a statement before the police. It was alleged by the prosecution that Vijay Kumar was done to death on this account by the petitioner along with his other Crl.M.No.4691-M of 2011 -2- co-accused. The FIR was registered on the statement of one Ashok Kumar, brother of Vijay Kumar deceased who stated that he suspected that Bablu, Jasvir alias Baba Bindri, Monu Suniara and others have caused the death of Vijay Kumar. The petitioner was not named in the said FIR and he was subsequently arrested. An allegation also surfaced that all the accused persons named by the prosecution had made an extra judicial confession to one Ranjit Singh. Aas a result of the aforesaid the petitioner is also facing the prosecution for having allegedly committed the murder of Vijay Kumar. Learned counsel for the petitioner contended that other co- accused from whom recovery of the offending weapons was effected have been released on bail and the petitioner whose name does not find mention either in the statement of complainant Ashok Kumar nor is his complicity established by the material collected by the prosecution so far, has been denied the benefit for no justifiable reasons. He contends that the case is merely based on circumstantial evidence and till date the witnesses who have been examined have not supported the case of the prosecution and a solitary witness Mahipal who has since been examined also does not specifically name the petitioner nor does he acknowledge his role in the commission of the offence. On the other hand, learned counsel for the State on instructions from Ashwani Kumar, ASI, Police Station Salem Tabri has stated that only four witnesses have been examined so far out of total of 34 witnesses named by the prosecution. He, however, has no Crl.M.No.4691-M of 2011 -3- explanation to offer as to why the delay has been caused by the prosecution in getting the witnesses examined. This Court has considered the matter. On 23.9.2010 the prayer of the petitioner was declined with a direction to the learned trial Court that the trial shall be expedited and the prosecution shall not be granted any untoward adjournment for producing its evidence. The fact that only four witnesses out of 34 have been examined makes it obvious that expectation of the Court has not been respected. No plausible explanation has been given by the learned counsel appearing for the State of Punjab as to why these prosecution witnesses have not been examined despite the said observation made by this Court in the order dated 23.9.2010. Grant of bail is normally to be construed liberally and the denial thereof is an exception. The Court while considering the grant of bail is normally to evaluate circumstances in entirety which may include the role of the person applying for bail as also the gravity of the offence and the diabolism of its execution. The facts of the case show that the report has been made by the complainant on the basis of suspicion in which name of the petitioner does not find mention. Prima facie, this fact as also the fact that the other co-accused who have been specifically named have been granted bail, as also the fact that the prosecution has miserably failed to conclude its evidence despite the orders of this Court for which no justifiable reason has been given, I am of the considered opinion that further incarceration of the petitioner would be unjust. Consequently, the application is accepted and the petitioner Crl.M.No.4691-M of 2011 -4- is directed to be released on bail under the provisions of Section 439 Cr.P.C. Bail to the satisfaction of the Chief Judicial Magistrate, Ludhiana. 5.4.2011 (MAHESH GROVER) JUDGE dss