GOPAL KISHAN SHARMA, J. - (1.) THIS bail application is filed by Jamnalal Under Section 439, Cr. PC who is facing (rial along with Roshan lal and Bhanwar Lal and Kundan Lal in the Court of Addl. Sessions Judge, Udaipur for the offence under Sections 147, 148, 323, 324, 302 read with Section 49 IPC.
(2.) ACCORDING to the prosecution Ganesh Lal Nagda lodged a written report at Police Station Pratap Nagar on 14 -9 -1983 alleging that on 13 -9 -1983 at about 11 p.m. in the night when he along with his family members was talking accused persons Bhanwar Lal, Roshan Lal Kundan Lal, Jamna Lal and Raju armed with deadly weapons came there and shouted that entire family be killed. It is alleged that Roshan Lal inflicted sword blow in the stomach of Bhagwati Lal. When Hukmi Chand, Fateh Lal, Chaturbhuj and Nirmala came to rescue Bhagwati Lal, were also injured by the accused persons. Bhagwati Lal died on account of the injuries. After completing the investigation the challan was filed against four accused persons. Raju being child is being tried separately by the Children's Court. Jamnalal has moved this bail application for releasing him on bail. The learned Counsel for the accused argued that Roshan Lal is the person who inflicted fatal injury by sword to Bhagwati Lal as alleged by the prosecution. Bhagwati Lal according to medical report died on account of injury in the stomach inflicted by Roshan Lal. There is no allegation against Jamnalal that he inflicted any fatal blow to Bhagwati Lal. The only allegation against Jamnalal is that when Hukmichand, Chaturbhuj. Nirmala and Fateh Lal came to rescue Bhagwati Lal, accused Jamna Lal inflicted lathi blows to them. Except this there is no allegation that Jamna Lal had inflicted any blow to deceased Bhagwati Lal. It was also stated that Roshan Lal who is the main assailant, who is the author of the fatal injury has been released on bail by the learned Sessions Judge on 8 -2 -1985 on medical ground Kundan Lal has been released on bail by this Court on 16 -4 -1984 on the ground of age and illness. Bhanwar Lal has also been released on bail on 25 -6 -1984. Now only Jamnalal accused has not been released on bail. It was also argued that the case is pending since 21st Nov. 1984 for prosecution evidence and since then only one eye -witness has been examined by the trial Court. By this time four witnesses have also been examined but they are all formal witnesses. The other eye -witnesses on dates fixed by the Court either did not appear or if appeared their statements were not recorded. According to the learned Counsel for the accused it is a fault of the prosecution that the witnesses have not been examined and the case has been unnecessarily prolonged. The request of the learned Counsel is that when the petitioner Jamnalal is not the author of the fatal injury, and when the other co -accused have been released on bail specially Roshan Lal who is the author of the fatal injury, it is prayed that the case of Jamna Lal is fit to be released him on bail.
(3.) SHRI N.P. Gupta appeared on behalf of the complainant and is assisting the Government Advocate, has vehemently opposed the bail application. According to him this application is the 5th bail application and the and the first bail application was rejected by this Court on 5 -1 -1984 by giving a detailed order. He argued that Jamnalal is the main person who is the leader of all the other accused persons. He brought them and the main person who instigated for this offence. From the circumstances of this case as revealed during investigation, Jamnalal is the principal offender in this case and he cannot escape liability from the offence of murder. Thus according to Mr. Gupta a case under Section 302 read with 149 prima facie is made out against Jamanlal and as ordered by lower Court while disposing the first bail application he is not entitled to be released on bail. It was also argued that the witnesses were present in the Court but their statements were not recorded on account of objections taken by the accused persons, on every date when the prosecution witness was present one or another objection used to be raised by the accused persons and they are responsible for this delay of this case.;