JUDGMENT
A.S. Godara, J.
1. Both these petitions have been filed Under Section 439, Cr.P.C. in connection with the case arising ojut of one and the same F.I.R. No. 134/96 registered Under Sections 147, 148, 341, 307 and 302 read with Section 149, I.P.C. with the Police Station, Gotan and therefore, both these petitions are being disposed of by this common order.
2. Presently stated, the prosecution story, as alleged in the F.l.R. lodged by Ram Niwas and as a result of investigation and after filing of the charge-sheet Under the aforesaid offences against the accused-petitioners and one Ram Prakash, is that the Ram Niwas (informant) accompanied by Ram Dayal and Mangi Lal, on 28-8-96 at about 6 p.m., after closing his shop situated in Gotal, was proceeding in his jeep towards his village and the jeep was driven by Ram Chandra (deceased). On reaching the bus stand of Gotan, it was found that the accused-petitioners along with six or seven more persons had parked their two tractors on both sides of the road and the accused-petitioners stood in front of the jeep and they obstructed the passage of the same. It was also alleged that Ram Rakh, Ram Prakash and Babu Lal were armed with fire-arms while Ram Niwas and Baxa were armed with iron rod and ‘farsi’ respectively while rest of the accused-persons were armed with lathis. Ram Rakh fired his ‘Katta’ (pistol) but he was not hit by the shot and the same missed the target. However, Ram Prakash fired from ‘katta’ at the driver of the jeep (Ram Chandra) which did not miss the target and instead the same hit on his head and he succumbed to his injury instantaneously. After killing Ram Chandra, all the accused-persons fled away from the scene of occurrence.
3. Ram Niwas immediately reached the Police Station and lodged report against the accused-petitioners and their accompl ices, on which a case was registered and, lastly, the accused-petitioners, besides Ram Prakash were challaned in the Court of Addl. Civil Judge-cum-Judicial Magistrate, Merta who committed the accused-persons to the Court of the learned Sessions Judge, Merta.
4. The accused-petitioners moved bail applications Under Section 439, Cr.P.C. before the trial Court and the same were dismissed and hence these petitions, as above.
5. I have heard the learned Counsel for the petitioners as well as the learned P.P. and so also the learned Counsel for the complainant and have also perused the challan papers and considered the same carefully.
6. The learned Counsel for the petitioners contended that there was a long standing animosity between the parties and previously murder of one Poona Ram took place for which the complainant-party is being prosecuted. Though, besides F.I.R., as also alleged in the charge-sheet, it transpires that all the accused-petitioners arc alleged to have been armed with lathis, ‘farsi’ and iron rod, as above, but no such weapon of offence was used by either accused-petitioners in causing hurt to either Ram Chandra (deceased) or the informant himself. Similarly, none of their associates was also injured in the incident. Had there been as many as persons involving and participating in the alleged incident, there was no reason for them to have spared fellow companions of the deceased. They had, as per the prosecution story, not attempted to resist the alleged assault and the accused-persons and their accomplices are alleged to have retired after a single shot so fired from the ‘katta’ by Ram Prakash hitting Ram Chandra fatally. As a result, the learned Counsel for the petitioners further argued that there did not exist any unlawful assembly formed with any common object to kill either Ram Chandra or his associates to death and, therefore, presently, even after investigation itself it is apparent that it was an act of single person who fired a single shot from a fire-arm and, as is his contention, though Ram Rakh being armed with a fire-arm, is alleged to have also fired at the jeep but the same missed the target. No pellets or pieces of any bullet were found at the place of occurrence. Besides, Babu Lal is also alleged to have been armed with firearm but he is not alleged to have used it in the same incident. Besides, it is also contended that, just after the occurrence, the Police Station of Gotan flashed QST message to the neighbouring Police Stations of Gotan and it was mentioned therein that some unknown persons had killed the servant of Mangi Lal, Sarpanch and, therefore, a vigil be kept on the vehicles passing through and the culprits be arrested.
7. As a result, the learned Counsel for the petitioner further contended that the F.I.R. was manoeuvered and manipulated with a view to implicate falsely as many as persons from the side of the accused, who were taken to be inimical by the complainant-side to wreak vengeance on them since other criminal cases including murder cases were also pending between the parties. As a result, presently, the accused-petitioners to whom no overt act is alleged by the prosecution and only the presence is shown at the place of occurrence whereat Ram Prakash alone is alleged to have fired a single shot at the deceased resulting in his death and not more. Therefore, presently, the accused-petitioners have a strong case for their being bailed out pending trial of the case.
8. The learned Public Prosecutor as well as the learned Counsel for the complainant have vehemently opposed it contending that an F.I.R. was immediately lodged and all the accused-persons who are, admittedly, inimical to the complainant-party had assembled at the place of occurrence and they were also so armed with deadly weapons and since a single gun-shot injury proved fatal killing Ram Chandra on the spot so there did not arise any exigency or necessity for other co-accused persons to have waited more at the place of occurrence being the heart of the town whereat number of shops, vehicles etc. were situated/ parked. Therefore, since the accused-persons themselves parked their tractors at the place of occurrence waiting for the arrival of Ram Niwas etc. and they also obstructed the passage of the vehicles and immediately they fired on the jeep resulting in instantaneous killing of Ram Chandra and since rest of the associates of the deceased ran hither and thither and so they could escape their deaths which is a sheer coincidence. All the accused-persons jointly escaped from the scene of occurrence. There was a strong animosity and previously too, Poona Ram, besides a Head Constable were also killed to death and criminal cases were pending in the Court of law. As a result, looking to the gravity of the offences and the common object of the unlawful assembly so formed, presently, none of the accused-petitioners is entitled to grant of bail and in case they are granted bail, they shall again misuse the same.
9. Presently, all the accused-persons are facing trial and, admittedly, there is animosity between the two contesting sides and the same is a double-edged weapon. Admittedly, the alleged shot fired from the pistol by Ram Rakh did not hit either the jeep or inmates of the same. Besides, none of the other accused-petitioners, besides, Babu Lal appear to have fired from his fire-arm. None of other accused-persons, though the alleged weapons are shown to have been recovered at their instance, used the same in the incident. Besides, looking to the QST message despatched immediately from the Police Station after the incident as well as the alleged participation of number of persons including the accused-persons along with Ram Prakash, so far as the present petitions are concerned, the roll assigned to the accused-petitioners is different from that alleged to have been attributed to Ram Prakash. As a result, at present, so far as the present accused-petitioners are concerned, without prejudice to the proceedings pending in the trial Court against them, it is just and fair that they be allowed to be released on bail.
10. As a result, it is ordered that in case each of the accused-petitioners furnishes bail bonds in the sums of Rs. 20,000/- each to the satisfaction of the trial Court, he shall be released on bail. They shall further give an undertaking that they shall not tamper with the prosecution evidence and shall attend the trial Court as and when required by the trial Court while on bail. In case they fail to abide by these conditions, the learned trial Judge shall be at liberty to cancel the bail and take the defaulting accused into custody without reference to this Court.
11. Both the bail petitions are disposed of, as indicated above.