IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43213 of 2009 Birendra Pal, Son of Late Ram Autar Mahto, Resident of Village Sheonar, P.S. Mokama, District Patna. ------ Petitioner Versus State of Bihar ------ Opp. Party ----------- 2 18.12.2009 Heard learned counsel for the petitioner and counsel for the State as also counsel for the informant. The petitioner, facing prosecution for an offence under Sections 302/120(B)/34 of the Indian Penal Code and Section 27 of the Arms Act, has his defence that the only thing which has led to implication of the petitioner with regard to the murder of his brother is a lurking suspicion that he had a motive to get his brother killed and for this purpose, he had also allegedly paid some money to the main assailant, namely, Rajesh Singh. Learned counsel for the petitioner would submit that there is however no cogent material in the case diary or even otherwise to substantiate this part of suspicion as to passing of money by the petitioner to the killer, namely, Rajesh Singh and everything in this regard seems to be based on guesswork of the informant. 2 Learned counsel for the informant on the other hand would submit that even prior to the present occurrence a dispute had taken place with regard to the land and Nali, in question, and on that occasion the petitioner and his sons had threatened to do away with the life of the informant and his family members and therefore, when the present occurrence has ultimately resulted into death of the father of the informant, the complicity of the petitioner cannot be ruled out. In the opinion of this Court, the role of the petitioner, being confined only as a conspirator with no further allegation of any specific overt act against him in the killing of the deceased as also the fact that he is aged about 65 years old having no criminal antecedent would make him entitled for bail The learned counsel for the informant has however produced before this Court an application filed on 17.2.2004 by the informant of Mokama P.S. Case No. 18 of 2004 which would go to show that the petitioner had been made accused for offence under Sections 337/323/341/435/504/34 of the Indian Penal 3 Code. Counsel for the petitioner, however, has submitted that the petitioner has already been acquitted in the trial arising out of Mokama P.S. Case No. 18 of 2004. Thus, this Court would direct for release of the petitioner, namely, Birendra Pal on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of A.C.J.M., Barh, Patna in connection with Mokama P.S. Case No. 169 of 2009, subject to the condition that one of the bailors shall be either wife or son of the petitioner as also the court below will verify the criminal antecedent of the petitioner and would direct for his release on bail only if the petitioner has got no criminal antecedent. It goes without saying that the petitioner shall remain present in course of trial and his absence for two consecutive dates will make him liable for cancellation of the present bail. Rsh (Mihir Kumar Jha, J.)