Rajasthan High Court - Jodhpur
Ramchandra Vishnoi @ Chandu Diloiya vs State Of Rajasthan (2024:Rj-Jd:24259) on 28 May, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:24259]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 5242/2024
Ramchandra Vishnoi @ Chandu Diloiya S/o Mokhram, Aged
About 27 Years, R/o Jambeshwar Mandir Ke Pass, Gali No. 20,
Rampura Basti, P.s. Muktaprashad Nagar, Bikaner. (Presently
Lodged At Central Jail, Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 4734/2024
1. Anil Siyag S/o Nathuram, Aged About 22 Years, R/o Gali
No. 20, Near Jambheshwar Mandir, Rampura Basti, Ps
Mukhta Prasad Nagar, Dist Bikaner, Raj. (Lodged In Central
Jail Bikaner)
2. Manish Bishnoi S/o Shriram, Aged About 22 Years, R/o
Near Dada Pota Park, Bhimnagar, Ps Muikhta Prasad Nagar,
Dist Bikaner. (Lodged In Central Jail Bikaner)
3. Bhiraj Godara S/o Sh. Sohanlal, Aged About 29 Years, R/o
Ward No. 3, Village Molaniyaa Dhirera Station, Ps Jamasar,
Dist Bikaner. Currently Residing At Gali No. 18 Rampura
Basti, Mukhta Prasad Nagar, Ps Mukhta Prasad Nagar, Dist
Bikaner. (Lodged In Central Jail Bikaner)
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Umesh Kant Vyas
Mr. Kuldeep Singh Kumpawat
Mr. Vishal Sharma
For Respondent(s) : Mr. Mohd. Javed Gouri, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
28/05/2024
1. The jurisdiction of this Court has been invoked by way of
filing the applications under Section 439 Cr.P.C. at the
instance of accused-petitioners. The requisite details of the
matter are tabulated herein below:
[2024:RJ-JD:24259] (2 of 9) [CRLMB-5242/2024]
S.No. Particulars of the Case
2. Concerned Police Station Mukta Prasad Nagar
3. District Bikaner
4. Offences alleged in the FIR Under Sections 147, 148,
149, 302 & 341 of
IPC
5. Offences added, if any Under Section 212 &
120-B of IPC
6. Date of passing of impugned 20.03.2024
order (In CRLMB No.)
7. Date of passing of impugned 20.11.2023
order (In CRLMB No.)
2. It is contended on behalf of the accused-petitioners that no
case for the alleged offences is made out against them and
their incarceration is not warranted. There are no factors at
play in the case at hand that may work against grant of bail
to the accused-petitioners and they have been made accused
based on conjectures and surmises.
3. Contrary to the submissions of learned counsel for the
petitioners, learned Public Prosecutor as opposes the bail
applications 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.
5. The bail application of co-accused Ravi Prakash has been
allowed by this Court vide order dated 28.02.2024 in S.B.
Criminal Miscellaneous Bail Application No.15689/2024. After
taking into account the totality of facts and circumstances of
the case and after due deliberation, the relevant portion of
the said order is being reproduced hereunder:-
[2024:RJ-JD:24259] (3 of 9) [CRLMB-5242/2024]
5. A perusal of the FIR is revealing that the case starts with
lodging of an FIR bearing No. 0004 dated 15.06.2023 based upon a
written report submitted by one Dalip Manda to the SHO, Police
Station Mukta Prasad Nagar, Bikaner with the averments that in the
late night of 14.06.2023, the informant Suresh S/o Phusa Ram
informed him that some accused persons including the petitioner
made an assault over one Navrang; he was brutally clobbered up
and then the accused fled away from the spot. In a state where the
victim Navrang was fully soaked in a pool of blood, he was
evacuated to PBM hospital where he succumbed to the injuries
during the treatment. The cause and motive for the incident has
been stated to be previous animosity.
6. The investigation commenced and it was revealed during
investigation that the information provider Suresh Bishnoi was not
the witness of the incident rather he reached at the spot after the
incident. The above fact was narrated by witnesses Ramswaroop,
Ugrasen and Santosh Devi. This is an admitted case of the
prosecution that neither Dalip Manda nor the informer Suresh
Bishnoi S/o Phusa Ram Bishnoi had witnessed the incident. After
around one month and nine days of the incident, two close relatives
of the deceased namely Ugrasen and Ramswaroop have been made
witnesses to narrate the eye-witness account of the incident. A plain
reading of the statements of Ugrasen and Ramswaroop which were
both recorded on 24.07.2023 suggests a stereotypical recital. The
above fact can be fortified with the last line of the statement of
witness Ramswaroop recorded on 24.07.2023 wherein it is written
that my husband's mobile number is 9950509029, however, neither
[2024:RJ-JD:24259] (4 of 9) [CRLMB-5242/2024]
Ramswaroop is the wife of the deceased nor is he a female. The
same stereotypical recital can be traced while going through the
statements of Smt. Santosh Devi, Ugrasen and others. The plea of
defence that both the above-mentioned witnesses Ugrasen and
Ramswaroop were not the witnesses of the incident rather they are
tailor-made witnesses of the incident cannot be ignored at this
juncture of hearing a bail plea under Section 439 Cr.P.C. Another
plea of defence can also be taken into consideration for the
justifiable disposal of the bail plea that only with a view to ensure
false conviction of the accused, enemy witnesses have been
introduced after around one and a half months of the incident. Yet
another defence plea is that if witnesses Ramswaroop and Ugrasen
had actually seen the incident then why did they come into picture
after lapse of one and a half months of the incident. What prevented
them to narrate the story immediately and promptly to the police
soon after the incident took place and what were the circumstances
under which their statements could not be recorded at the earliest.
Recording of the statements of relevant and partisan witnesses
belatedly casts serious doubt over the genesis and genuineness of
the allegation. The possibility of embellishment, concoction and
false implication can also not be ruled out. It is also not
comprehensible as to how the witness Suresh Bishnoi has been
eliminated from the picture when he informed regarding the
incident initially. It is an oddity in this case that the first-hand
narration of the story has been replaced by a subsequent narration.
Although this Court is not giving any final opinion with regard to
the genuineness of the allegation but these facts have been
considered and incorporated only with a view to make justifiable
[2024:RJ-JD:24259] (5 of 9) [CRLMB-5242/2024]
disposal of the bail application with a reasoned order and it is
made clear that the observations made herein above shall not
influence the trial judge or any of the parties during any stage of
the trial.
7. There is another aspect of the matter whereby a theory of
role of dying declaration was noticed. In a detailed statement under
Section 161 of the Cr.P.C. recorded on 24.07.2023, Santosh Devi,
who happens to be the mother of deceased Navrang, proposed a
different story than what has been stated in the statements of other
witnesses. She stated that as soon as she received the information
regarding the incident of her son getting beaten up, she rushed to
the spot with her brother where both the eye-witnesses
Ramswaroop and Ugrasen were present and they told them that the
deceased was beaten by the accused persons including the
petitioner, whereafter her son Navrang was taken to the hospital.
After passing of some time, he fell unconscious. She did not claim
under the statement recorded on 24.07.2023 that her son had told
her the manner and mode of the incident rather on the contrary, in
her previous statement recorded on 19.06.2023, she claimed that
after initial treatment, her son got conscious and told her regarding
the assault made upon him as well as regarding the role played by
the accused persons. Interestingly, neither the police officer nor the
medical officers make any whisper regarding utterances of the
deceased to his mother.
8. Here, in the case at hand, this Court came across two weird
circumstances which are putting dent on the case of the prosecution
in its nascent stage. One is elimination of independent witness from
the picture and induction of relative and partisan witnesses to
[2024:RJ-JD:24259] (6 of 9) [CRLMB-5242/2024]
narrate the eye-witness account of the crime. The second
circumstance noticed by this Court is the delay in recording of
statement of eye-witnesses who were easily available for the
investigating officer for examination when the investigating officer
visited the scene of crime, hospital and the residence of the
deceased. Even the wife of the deceased stated that the witnesses
Ramswaroop and Ugrasen were very much present all around since
they were relatives of the family of the deceased. The legal position
is very much settled that evidence of relative and partisan witnesses
cannot be discarded simply on this count that they are relatives,
however, a duty is cast upon the Court to scrutinize the same
cautiously as well as it has been held by the Supreme Court in many
cases that delayed recording of the statement of prosecution
witnesses will not be fatal to the prosecution in every case but a
caution is required to be examined as to whether their testimonies
are cogent, credible and reliable enough to explain the delay.
Reliance has been placed upon the judgment passed by Hon'ble the
Supreme Court in the case of Harbeer Singh Vs. Sheeshpal & Ors.
reported in AIR 2016 SC 4958. The relevant para No.16 & 17 are
reproduced herein below:-
"16. As regards the incident of murder of the deceased, the
prosecution has produced six eye-witnesses to the same. The
argument raised against the reliance upon the testimony of
these witnesses pertains to the delay in the recording of their
statements by the police under Section 161 of Cr.P.C. In the
present case, the date of occurrence was 21.12.1993 but the
statements of PW1 and PW5 were recorded after two days of
incident, i.e., on 23.12.1993. The evidence of PW6 was
recorded on 26.12.1993 while the evidence of PW11 was
recorded after 10 days of incident, i.e., on 31.12.1993.
Further, it is well-settled law that delay in recording the
[2024:RJ-JD:24259] (7 of 9) [CRLMB-5242/2024]
statement of the witnesses does not necessarily discredit their
testimony. The Court may rely on such testimony if they are
cogent and credible and the delay is explained to the
satisfaction of the Court.[See Ganeshlal Vs. State of
Maharshtra, (1992) 3 SCC 106;Mohd. Khalid Vs.State of West
Bengal (2002) 7 SCC 334; Prithvi (Minor) Vs.MamRaj & Ors.
(2004) 13 SCC 279 and Sidhartha Vashisht @ Manu sharma
Vs. (NCT of Delhi) (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra,
(1978) 4 SCC 371, is an authority for the proposition that
delay in recording of statements of the prosecution witnesses
under Section 161 Cr.P.C., although those witnesses were or
could be available for examination when the Investigating
Officer visited the scene of occurrence or soon thereafter,
would cast a doubt upon the prosecution case. [See also
Balakrushna Swain Vs. State of Orrisa, (1971) 3 SCC 192;
Maruti Rama Naik Vs. State of Maharashtra, (2003) 10 SCC
670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68].
Thus, we see no reason to interfere with the observations of
the High Court on the point of delay and its corresponding
impact on the prosecution case."
The trial of this case will take substantially long time and
the question raised above would finally be adjudicated by the
learned trial Court after taking on record the entire evidence,
however, when a question of liberty of an individual comes into
picture and when there is a rule of prudence as well as a rule of
law in place regarding detention prior to conviction law, this court
is not precluded from taking into account the above facts at the
time of entertaining a bail plea and the pleas raised by the defence
cannot be ignored.
9. It is well-nigh settled that at pre-conviction stage, bail is a
rule and denial from the same should be an exception. The purpose
for keeping an accused behind the bars during trial would be to
[2024:RJ-JD:24259] (8 of 9) [CRLMB-5242/2024]
secure his presence on the day of conviction so that he may receive
the sentence as would be awarded to him. Otherwise, it is the rule
of criminal jurisprudence that he shall be presumed innocent until
the guilt is proved.
10. The manner in which the primary story has been changed
with the subsequent new version; the manner in which the close
relatives have been made eye-witnesses after lapse of one and a half
months and their statement have been recorded belatedly; the
manner in which the mother of the deceased changed her version on
two occasions certainly with incongruity therein; the manner in
which the parrot-like recital and recording of statements under
Section 161 of the Cr.P.C. has been done in a common language
and the manner in which efforts have been made to throw the
statement of eye-witness Suresh Bishnoi out of the picture form a
corsage of relevant points of consideration to grant the bail
application preferred on behalf of the petitioner who is behind the
bars since more than eight months which strongly persuaded this
Court to take a lenient view in granting bail to the petitioner. There
is high probability that the trial may take long time to conclude. In
light of these facts and circumstances, it is deemed suitable to grant
the benefit of bail to the petitioner in the present matter.
6. It is not in dispute that the case of the present petitioner
does not have any distinguishable feature then to the case of
co-accused Ravi Prakash who has been enlarged on bail by
this Court. In this view of the matter, on the ground of parity
and to maintain judicial discipline and consistency, it is
deemed suitable to grant the benefit of bail to the petitioners
in the present matter.
[2024:RJ-JD:24259] (9 of 9) [CRLMB-5242/2024]
5. Accordingly, the instant bail applications under Section 439
Cr.P.C. are allowed and it is ordered that the accused-
petitioners as named in the cause title shall be enlarged on
bail provided each of them furnishes a personal bond in the
sum of Rs.50,000/- with two sureties of Rs.25,000/- each to
the satisfaction of the learned trial Judge for their appearance
before the court concerned on all the dates of hearing as and
when called upon to do so.
(FARJAND ALI),J
17-18.Samvedana/-
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