1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CR.MISC.BAIL APPLICATION NO.3185/2010 Devi Sahai Vs. State Date of order : 22/7/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri A.K. Gupta for the petitioner. Shri G.S. Rathore, P.P. for the State. ****** Heard learned counsel for the petitioner, learned Public Prosecutor for the State and perused the relevant documents placed before me. Contention of the learned counsel for the petitioner is that although in the first version given by the informant Krishan Kumar, it was alleged that the petitioner inflicted blow on the head of the deceased Ramjilal by a sharp edged weapon followed by another blow by co-accused Dinesh Kumar on his ribs, but this version did not get corroboration from the injury report prepared on the same day, according to which deceased received two injuries one lacerated wound on occipital region and other bruise on right side of the chest, which is a simple injury. In most of the statements recorded u/s.161 Cr.P.C., therefore, the story was changed to say that lathi blow was inflicted on the head of the deceased Ramjilal by Suraj and when he fell down and became unconscious, petitioner Devi Sahai inflicted lathi blow on his chest. It is 2 contended that statement of five witnesses so far have been recorded including the informant Krishna Kumar, who does not attribute the fatal injury to the petitioner, but rather supports the story that is developed during investigation. In most of the statements recorded u/s.161 Cr.P.C., it is stated that Suraj inflicted lathi blow on the head of the deceased Ramjilal and thereafter when he fell down, petitioner Devi Sahai also beat him with lathi. Learned counsel for this referred to the statement of PW-1 Hanuman, PW-2 Giriraj. He also referred to the statement of PW-3 Sadhu Ram to say that though this witness has assigned the fatal injury to co-accused Pooran and not to Suraj but he has not said anything about the second injury and not named the petitioner as its author. Similarly, he referred to statement of PW-4 Chhitar, who has stated that Pooran and Suraj inflicted lathi blow on the person of Ramjilal and that petitioner Devi Sahai inflicted lathi blow on his (Chhitar) head which injury is simple. Learned counsel also referred to the statement of PW-5 Krishan Kumar, the informant and has argued that he has made a general allegation that Suraj Mal and Pooran Mal inflicted lathi blows on the person of the deceased resulted into head injury and other injuries, but he has not alleged that it was the petitioner Devi Sahai, who caused any injury, let alone 3 head injury, to the deceased. It is contended that Devi Sahai has been falsely implicated inasmuch as the first version given in the FIR stands falsified not only from the medico-legal report but also from the statements of the witnesses so far recorded before court and also from those u/s.161 of Cr.P.C. Learned counsel also referred to postmortem report to contend that the cause of death in the opinion of the Medical Officer was head injury, which has not been assigned to petitioner. It is contended that the incident has taken place at the field of the petitioner party, owning to which a cross case was registered in which challan has been filed against the complainant party for offence u/s. 325 and 447 of IPC and therefore the petitioner for that matter and all family members, could not have been arrayed as accused with the aid of Section 149 of IPC because petitioner would have the right to private defence. Petitioner was arrested on 30.6.2009 and has remained behind the bars for almost 13 months. There are in total 36 witnesses and so far statement of only 5 witnesses have been recorded and trial of the case will take long. Learned Public Prosecutor has opposed the bail application and repeated the version as was set up by the informant and that the petitioner has been aided as an accused with the aid of Section 149 of IPC. 4 Without expressing any opinion on the merits of this case but taking into consideration all the facts and circumstances of the case, I deem it appropriate to enlarge the petitioner on bail. In the result, this bail application u/S.439 Cr.P.C. is allowed and it is directed that petitioner Devi Sahai S/o Surajmal shall be released on bail in F.I.R. No.100/2009, P.S. Thanagaji, Distt. Alwar for offence u/s.143, 447, 341 and 323 IPC on his furnishing a personal bond in the sum of Rs.30,000/- together with two sureties in the sum of Rs.15,000/- each to the satisfaction of the trial Court for his appearance before that court on all dates of hearing and as and when called upon to do so till conclusion of the trial. (MOHAMMAD RAFIQ), J. RS/