Nirmaljit Kaur, J. - (1.) This is second bail application under Section 439 of Cr.P.C. The petitioner has been arrested in connection with F.I.R. No. 56/2011, Police Station Bijjolia, District Bhilwara for the offences under Sections 148, 341, 332, 353, 307, 302 & 120-B I.P.C. and Section 3/25 of the Arms Act.
(2.) This is the second bail application. The same has been filed on the ground that as per the cross-examination of the eyewitness namely Bheru Lal (PW-7), he had recognized the present petitioner only by sheer guess work as it was dark. Secondly, a rifle was recovered from him and as per the FSL report, the rifle does not appear to have been used. Thirdly, as per the statement of Prem Singh (PW-9), Bheru Lal was not present on the spot and he has been introduced subsequently and thus, is not the actual eye-witness. He came on the spot subsequently after the incident was over.
(3.) The statement of Bheru Lal (PW-7) has been perused. It is specifically stated by him in his examination-in-chief that he was very much in the said vehicle and he had specifically seen these three persons. He gave a detailed description of those three persons. He further stated that he can recognize these persons and thereafter he also identified those three persons as sitting in the Court and identified them correctly. The argument that in his cross-examination he had submitted that he recognized these persons by sheer guess work cannot wipe out his specific stand in the examination-in-chief at this stage. The statement of Prem Singh that Bheru Lal came subsequently is also not made out from the statement of Prem Singh. In fact, it is specifically stated by him that Bheru Lal and two other persons had run away after the firing started which shows that Bheru Lal was very much present and ran away only after the firing started and not before, which corroborate the statement of Bheru Lal. The argument that as per the FSL report the rifle was recovered from the present petitioner was not used is sufficient to absolve the petitioner at this stage.;