Rajasthan High Court
Vishal Khinchi S/O Hemraj Khinchi vs State Of Rajasthan on 15 November, 2021
Bench: Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous IIIrd Bail Application No.
18297/2021
Vishal Khinchi S/o Hemraj Khinchi, Aged About 25 Years, R/o
H.no. 317 Govariya Bawadi Mahaveer Nagar First Ps Jawahar
Nagar Kota City At Present In Central Jail Kota
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. A.K. Gupta with Mr. Rinesh Kumar
Gupta
For Respondent(s) : Mr. S.S. Ola, Public Prosecutor
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
Order
15/11/2021
This third bail application has been filed under Section
439 Cr.P.C in connection with FIR No.83/2021 registered at Police
Station Jawahar Nagar, District Kota for the offences under
Sections 323, 341 & 307 of IPC and 4/25 of the Arms Act, 1959.
Learned counsel for the petitioner submits that during
trial, three witnesses have been examined including the
complainant and the doctor. From the statement of PW-3-Dr.
Deepak Sharma, it is clear that the injury report, which was
prepared on 30.04.2021 has not been produced by the
prosecution. Then, the injury report Exhibit-P-8 lost its
importance, which was prepared on 03.05.2021. Counsel further
submits that the injury shown to be grievous and dangerous to
life, is not covered by the provision of Section 307 IPC. From a
(2 of 4) [CRLMB-18297/2021]
bare perusal of the judgment of this Court in the matter of Munna
Vs. State of Rajasthan, reported in Cr. L.R. (Raj.) 1984 page 529,
it has been observed that when the injury was sufficient to cause
death in ordinary course of nature, as per the opinion of the
doctor then it attracts the provision of Section 307 IPC, if the
doctor has not stated the same then it is only covered by Section
308 IPC. Counsel also submits that in the matter of G.S. Walia Vs.
State of Punjab & Ors., reported in AIR 1998 SC 2857, the Hon'ble
Apex Court has observed that "The medical evidence thus, clearly
shows that though the injuries themselves did not cause the
death, they had necessitated bed rest and that led to Pulmonary
Embolism."
The another aspect of the case is related to recovery of
knife, which has been recovered from an open place and the
witnesses are the Police Constables. There is nothing in the record
that independent witnesses were not available or called but did
not come. It is further submitted that in the matter of Prabhu
Babaji Vs. State of Bombay, reported in AIR 1956 SC 51, the
Hon'ble Supreme Court has held that if there is no such evidence
than FSL, if shows that recovered article was stained with blood,
has got no legal evidence, it does not connect the accused with
crime. From the statement of PW-3-Dr. Deepak Sharma, it is clear
that no such evidence has been recorded. It is further submitted
that in the matter of Radhey Shyam Vs. State of Rajasthan,
reported in (2014)5 SCC 389, the same aspect is clear. In the
matter of Official Liquidator Vs. Dayanand & Ors., reported in 2008
(10) SCC 1, it has been observed that the learned Single Judges
and Benches of the High Courts refuse to follow and accept the
(3 of 4) [CRLMB-18297/2021]
verdict and law laid down by the Coordinate and even Larger
Benches by citing minor differences in the facts as the ground for
doing so. It is further submitted that from the statement of PW-
1/complainant-Lokesh Pandey, it is clear that the accused-
petitioner is not known to this injured witness and no test
identification parade has been conducted and there was no enmity
between the parties. The petitioner was arrested on 01.05.2021
and since then, he is in custody and charge-sheet has already
been filed. It is well settled law that grant of bail is a rule and
refusal is exception. From the facts and circumstances of the case,
it is clear that in the light of statement of PW-1/complainant-
Lokesh Pandey, no such offence has been committed. Hence, in
the interest of justice, third bail application of the petitioner may
kindly be granted.
Learned Public Prosecutor has strongly opposed the bail
application.
Heard. Perused the material available on the record.
First bail application of the petitioner had been
dismissed by this Court as withdrawn with liberty as prayed, vide
order dated 09.06.2021. Second bail application of the petitioner
was dismissed by this Court vide order dated 30.07.2021, after
filing of the charge-sheet. FIR was lodged by the
complainant/injured Lokesh Pandey and the petitioner is named in
that FIR. As per FIR, the petitioner inflicted injury to injured
Lokesh Pandey with knife and the knife was recovered at the
instance of the petitioner. As per injury and X-Ray reports of
injured Lokesh Pandey, he got twelve injuries caused by sharp
edged weapon. The injury No.5 is caused by sharp weapon and is
(4 of 4) [CRLMB-18297/2021]
grievous in nature and also dangerous to life. Injury No.5 is
reproduced as under:
"Stitched wound, 5cm long at left abdomen laterally."
During the course of trial, statements of PW-
1/complainant/injured-Lokesh Pandey, PW-2-Ganga Ram, recovery
witnesses of knife (Exhibit P-6) and PW-3-Dr. Deepak Sharma
were recorded. PW-3-Dr. Deepak Sharma examined injured
Lokesh Pandey and gave his statement about the injury report
(Exhibit P-8) and opinion (Exhibit P-9). They all are not hostile
witnesses. Meticulous examination of prosecution evidence is not
necessary at the stage of disposal of the bail application.
Therefore, looking to the above facts and circumstances of the
case and gravity of the offence but without expressing any opinion
on the merits/demerits of the case, I deem it not proper to
enlarge the petitioner on bail.
Accordingly, the third bail application under Section 439
Cr.P.C. is dismissed.
(CHANDRA KUMAR SONGARA),J
Satyendra/5
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