Madhya Pradesh High Court
Viju @Vijay vs The State Of Madhya Pradesh on 27 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:1953
1 MCRC-1085-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 27th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 1085 of 2025
VIJU @VIJAY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Madhuri Aman Jadhav - Advocate for the petitioner.
Shri Rajwardhan Gawde - Govt. Advocate for respondent / State.
ORDER
1. This is second application filed under Section 439 of the Cr.P.C for
grant of bail by the applicant who has been implicated in Crime
No.312/2022, registered at police station Kukshi, District Dhar for
commission of offence punishable under Sections 302/34 of IPC and under
Section 25(B) of Arms Act, 1959.
2. First application bearing M.Cr.C.No.25746/2023 was dismissed as
withdrawn by order dated 19/7/2023.
3 . As per the prosecution, on 31/3/2022, a report was lodged by the
complainant Rohan, grand son of the deceased Bathu to the effect that about
10.00 AM Bathu was sitting in the Varanda of his house when co-accused
Ramlya, Mansharam, the applicant and Dinesh came armed with Phaliya and
started shouting at him. They assaulted him with the Phaliya with an
intention to kill him and inflicted several injuries upon him. Thereafter they
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threw his body and ran away. Upon lodging of the report by the complainant
investigation was commenced by the police and upon recording of statement
of complainant Rohan to the effect that applicant had assaulted the deceased
with a Phaliya, he has been implicated and arrested for the present offence.
4. Learned counsel for the applicant submits that the applicant is
innocent and has falsely been implicated in the case. There is a delay of more
than 5 hours in lodging of the FIR. The police station was very close to the
place where the incident had taken place hence there is no reason for delay in
FIR. The same has not been explained. It is further submitted that out of 4
eyewitnesses 2 have already been declared hostile. Though (PW.1) Rohan
has supported the prosecution case but he has also stated that he had called
Pawan after the incident but Pawan has also been declared hostile. It is
further submitted that the applicant is in custody since 10/4/2022 and the trial
is progressing at a snail's pace and would take a considerable time for its
conclusion during which the applicant shall continue to suffer jail
incarceration. On such grounds, prayer for grant of bail to the applicant has
been made. Reliance has been placed on the decision of the Telangana High
Court at Hyderabad in Criminal Appeal No.113/2017 (Mohammed Isaq
Riyas Khan V/s. State of Telangana) decided by order dated 31/12/2024.
5. Per contra, learned counsel for the respondent / State has submitted
that there are eyewitness in the incident who have deposed against the
applicant before the Court. A Phaliya has also been recovered from the
applicant which has been sent for DNA analysis. The trial is very much in
progress hence the applicant is not entitled to be released on bail.
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6 . I have heard the learned counsel for the parties and have perused the
case diary as well as the record.
7. Though there are four eyewitnesses in the incident but two of them
have not supported the prosecution case and have been declared hostile.
However, merely for that reason the testimony of the other eyewitnesses
cannot be discarded. (PW.1) Rohan has specifically stated that the applicant
was having a Phaliya in his hand and that he assaulted the deceased with the
same. Thereafter all the other co-accused also assaulted him. (PW.4) Chagan
Kararia has also stated that he had seen the accused armed with Phaliya and
assaulting the deceased. Thus though two eyewitnesses may not have
supported the prosecution case but two of them have very much supported.
One eyewitness still remains to be examined. It is well settled that it is the
quality of the statement and not the quantity which is to be seen. Only for the
reason that two eyewitnesses have been declared hostile the testimony of the
other eyewitnesses cannot be discarded. The omissions and contradictions in
the statements of eyewitnesses are not to be examined at the present stage as
that would be a matter of appreciation by the trial Court at the appropriate
stage.
8. A Phaliya has been recovered from the applicant which has been
sent for DNA analysis. The report is awaited. The incident is alleged to have
taken in broad day light at 10.00 AM. The FIR was lodged after about 5
hours. In the facts and circumstances of the case, the same cannot be said to
be so inordinately delayed that the entire version of the prosecution may be
disbelieved particularly when the eyewitnesses as aforesaid have supported
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it. The effect of delay, if any, in lodging of the FIR is to be considered by the
trial Court itself at the time of decision.
9. From a perusal of the order sheets of the trial Court it is evident that
the trial is very much in progress. Summons have been issued to PW.9 and
PW.10. It hence cannot be said that the trial is not at all progressing. It is a
case of murder in broad day light hence the custody period of the applicant
for the present cannot be said to be inordinate. In such circumstances, the
judgment relied upon by the learned counsel for the applicant is not helpful
in any manner.
10. Thus in view of statements of prosecution witnesses, recovery of
Phaliya from the applicant and the fact that trial is in progress, I do not deem
it to be a fit case for grant of bail to the applicant. The application being
devoid of merits is hereby rejected. However, the trial Court is directed
expedite the trial.
(PRANAY VERMA)
JUDGE
SS/-
