Rajasthan High Court

Hasmuddeen S/O Shri Rajjuddin vs State Of Rajasthan (2024:Rj-Jp:8335) on 16 February, 2024

Author: Farjand Ali

Bench: Farjand Ali

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            HIGH COURT OF JUDICATURE FOR RAJASTHAN
                        BENCH AT JAIPUR

      S.B. Criminal Miscellaneous Bail Application No. 1504/2024

 Hasmuddeen S/o Shri Rajjuddin, R/o Kotla, Purana Shahar,
 Dholpur, P.s Kotwali, District Dholpur (Raj.) (Accused Is Presently
 Confined In District Jail- Dholpur).
                                                                      ----Petitioner
                                       Versus
 State Of Rajasthan, Through Pp
                                                                    ----Respondent

For Petitioner(s) : Mr. Manoj Avasthi For Respondent(s) : Mr. M.S. Saini, PP Mr. Rahit Khandelwal

HON'BLE MR. JUSTICE FARJAND ALI

Order

16/02/2024

1. The jurisdiction of this Court has been invoked by way of

filing an application under Section 439 Cr.P.C. at the instance

of accused-petitioner. The requisite details of the matter are

tabulated herein below:

S.No.                         Particulars of the Case

     2.    Concerned Police Station                    Kotwali Dholpur
     3.    District                                    Dholpur
     4.    Offences alleged in the FIR                  Sections 302 & 201 of
                                                           IPC
     5.    Offences added, if any                      Sections 307 & 120-B of
                                                           IPC

6. Date of passing of impugned 23.12.2021 order

2. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. There are no factors at play in

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the case at hand that may work against grant of bail to the

accused-petitioner and he has been made an accused based

on conjectures and surmises.

3. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor as well as learned

counsel for the complainant opposes the bail application and

submits that the present case is not fit for enlargement of

accused on bail.

4. I have considered the submissions made by both the parties

and have perused the material available on record. The bail

application of co-accused bearing No.10068/2022 titled Sunil

Gupta vs. State of Rajasthan has been allowed by this Court

in S.B. Criminal Miscellaneous II Bail Application No.

10068/2022. The case of the petitioner does not have any

distinguishing feature than to the case of Sunil Gupta whose

bail application has been allowed. The relevant portion of the

above mentioned order is reproduced below:-

8. Have heard the arguments submitted at the bar and have gone through the material placed on record including the material collected during investigation for the purpose of considering the bail of the present petitioner. Numerous grounds emerge on the basis of which the present bail application of the petitioner deserves to be allowed. They are enlisted below:-

a) Indisputably, there is no eye-witness of the incident of murder and the entire case of the prosecution is based upon circumstantial evidence.

In a catena of decisions, the Hon'ble Supreme Court has laid down the law that in a case solely based upon circumstantial evidence, every circumstance, individually or in isolation, must be proved beyond every shadow of reasonable doubt and if circumstances are taken cumulatively, the only possible inference should be the guilt of the accused

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to the exclusion of everything else. The circumstantial evidence should be like a spider's web leaving no exit for the accused to slip away. Although there cannot be a strait jacket formula for appreciation of circumstantial evidence but the Court has laid down certain tests which must be followed while convicting a person in a case based on circumstantial evidence through a slew of judgments. The tests are as follows:

1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature.

3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

4. The circumstantial evidence, in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence - in other words, the circumstances should exclude every possible hypothesis except the one to be proved.

The above principles were initially propounded in the case of Hanumant Govind Nargundkar vs. State of M.P. (AIR 1952 SC 343) which has been consistently followed in later judgments till date. Keeping in mind the principles of appreciation of circumstantial evidence, when the case in hand is examined, it is observed that the circumstances put forth by the prosecution and the evidence brought on record against the accused do not suggest that the chain of circumstantial evidence is so complete so as to infer the guilt of the accused at this stage though final adjudication upon this issue would be the discretion of the trial judge and the observation made in this regard herein in this order shall not bear any influence on the same.

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b) Corpus delicti was not found at that juncture in the investigation which raises a serious question that what was the piece of bone so collected which is said to have been matched with by the FSL in order to book the petitioner and the same can only be answered after appreciation of evidence during trial and final adjudication of the matter.

c) There is no direct evidence to show or suggest a nexus between the petitioner and the murder of the deceased of this case, rather the case of the prosecution mainly and majorly rests upon so called confessional statement made by the accused to a police officer while in custody; the evidentiary value of which is highly debatable. The conclusion of the investigation is wholly based upon the conjectural opinion of the investigation officer sans any legally admissible evidence. At the stage of hearing and deciding a bail plea, neither detailed & minute discussion of the evidence is warranted nor the same can be considered good rather the observation in the bail order may influence the further course of trial, therefore, this Court deems it appropriate to refrain from doing so.

d) While entertaining a bail plea of an accused, it is evident that his/her/their case is pending and the trial is ongoing, thus, presumption of innocence is there to support him. There are certain provisions pertaining to presumption in the Indian Evidence Act, 1872 such as Sections 111A, 113A, 113B, 114, 114A etc. and in some special statutes also, there are provisions regarding presumption that can be drawn but nowhere in the Evidence Act or any other penal statutes, the doctrine of presumption of guilt has been advocated. All the presumption clauses referred above come into the picture when the prosecution succeeds in discharging the burden laid upon it regarding establishment of the basic features of the case, thus, the initial burden always lies on the prosecution and only after discharge of the initial burden, the theory of reverse burden comes into play. Simply put, the theory of reverse burden or the reverse onus theory means that once the fundamental facts/features/truth of a case has/have been established which is substantial enough to move the burden from the prosecution to the defence, then the burden of proof shifts and lies on the defence/accused to disprove the allegations leveled against him/her/them or to prove

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his/her/their innocence. Having said this, suffice it is to say that while considering a bail plea under Section 439 of CrPC which relates to a bail pending trial, there is always a presumption of innocence in favour of the accused. While taking into account consideration of presumption of innocence, Court cannot lose sight of the other parameters that are to be considered while entertaining a bail plea which have been laid down and reiterated innumerable times by Hon'ble the Supreme Court in plethora of cases like nature and gravity of offences and availability of material in support thereof; whether there are prima facie or reasonable grounds to believe that the accused has committed the offence; severity of punishment in case of finding of guilt of the accused; possibility of abscondance of accused if released in bail; possibility of hampering of or tampering with the evidence if released on bail; character, conduct and social status of the accused; antecedents of the accused; if the accused is an influential person, then whether he may put impact on the smooth process of trial if released on bail; possibility of the prosecution witnesses being influenced; likelihood of repetition of offence or peril of infraction of justice if bail is granted.

e) There is not even a single provision in the Code of Criminal Procedure which recognizes the power or grants the power to any Court to allow a part of sentence to be suffered at pre-conviction stage and the rest of the sentence to be served post his conviction. The sentence cannot be divided and passed in such a manner that some part of it is suffered before passing of judgment of conviction and the rest is suffered after passing of judgment of conviction. In fact, sentence shall begin from the date of passing of order of sentence when the signature of the judicial officer is appended on the same. Thus, an accused cannot be made to undergo an indefinite period of detention pending trial particularly in cases where a strong arguable case exists in favour of the accused.

f) After pondering over the legal provisions made in the code of Criminal Procedure, the law enunciated by Hon'ble the Supreme Court through plethora of judicial pronouncements and upon deliberation of bail jurisprudence, it is understood that the only thing which a court of law has to ascertain while entertaining a bail plea is whether the accused

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should be allowed to come to the court to attend the judicial proceeding from his home and he may be allowed to remain with his family and within the society on the specific condition that on the stipulated date of the hearing of the case, he will willfully attend the court proceeding or contrary to this, he is such a person that even in the pending trial, he should be detained and should not be allowed to visit his family and should be lodged at a specified place of detention so that on the day of hearing, he may be brought to the court from the jail. In other words, it is to be decided whether he may be allowed to eat, sleep and live with his family like a man ordinarily does or he may be allowed to eat, sleep and live in the jail. It all boils down to this that whether the Court wishes to allow the accused to come to the court to attend the proceedings from his home upon furnishing his bonds and surety of independent person(s) or the court thinks that he cannot be allowed to roam free and therefore, he should be detained so that he may be brought before the court on the day fixed for the hearing. This Court is of the considered view that this is one of the prime concerns which is to be thought over and to be ascertained while entertaining a bail plea. It is a judicially noticeable fact in the present era that due to high volume of pending cases, culmination of trial takes considerable time and in my view, keeping the accused behind the bars during the pendency of the case would serve no purpose except in exceptional circumstances.

g) The entire gamut of bail jurisprudence revolves around the conduct of the accused. Release of a person having bad conduct or a history of bad conduct may be a peril to the society. It is his conduct which brings into the mind of a judicial officer to make an idea that if the accused is released on bail, he may commit the offence again/ repeat the offence again and as such, the same will not be in societal interest. Here, it is to be made clear that such kind of speculation should not be made on vague and bald pleas and aspersions rather there must be some solid material to reach on the above conclusion which means that the speculation should not be vague but should be well- founded. Here, in this case, neither the prosecution has placed any material nor any argument has been raised in this regard.

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h) The main object of keeping a person behind the bars pending trial is nothing more than to ensure a smooth, unhindered, fair and speedy trial and to ensure that he may be present to receive the sentence as may be passed. No such apprehension has been shown in this legal aspect of the matter and as such, there is no legal impediment to release the accused on bail in view of the discussion made herein above.

i) Another aspect which persuaded this Court to grant indulgence of bail to the petitioner would be that subsequent to disposal of the bail of the present petitioner, his son Satyam Gupta who was also made an accused in this matter was granted bail by a co-ordinate bench of this Court in S.B. Criminal Miscellaneous Bail Application No. 14040/2023 vide order dated 02.11.2023 on the basis that the nature of the material available against the petitioner did not warrant further detention of the accused in that matter. Thereafter, an SLP [Petition for Special Leave to Appeal (Crl.) No. 15327/2023] was preferred by the complainant against the said order which was dismissed by Hon'ble the Supreme Court vide order dated 08.12.2023. The case of the present petitioner is on a similar footing as that of the co-accused Satyam and on the ground of parity, this Court is of the view that the present petitioner also deserves to be enlarged on bail.

5. The legal and factual aspect of the matter has elaborately

been dealt with in the bail order of co-accused referred above

and the case of the petitioner is on identical footings, thus,

on the ground of parity, he too deserves to be released on

bail.

6. There is high probability that the trial may take long time to

conclude. In light of these facts and circumstances, it is

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deemed suitable to grant the benefit of bail to the petitioner

in the present matter.

7. Accordingly, the instant bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner