Not much reliance can be placed on statement of complainant under S. 161 CrPC if name of the accused is missing in FIR

High Court of Himachal Pradesh: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench comprising of Sandeep Sharma, J. granted bail to the petitioner as the Court saw no reason to allow the petitioner to be incarcerated in jail for indefinite period.

The petitioner was co-accused in a criminal case under Sections 302, 341, 323 read with 34 and 109 of IPC. It was alleged that all the accused caused death of the deceased-complainant by giving him beatings and stick blows. The complainant recorded his statement under Section 154 of CrPC, on the basis of which formal FIR came to be registered. In the said statement/FIR the name of the petitioner was never mentioned. It was only when the complainant recorded further statement under Section 161 of CrPC, that the petitioner was implicated in the said case. Learned counsel for the petitioner contended that the petitioner was falsely implicated in the case and he may be enlarged on bail.

The High Court perused the record and was of the view that since there was no mention of the name of petitioner in the FIR submitted by the complainant against the accused, not much reliance could be placed on subsequent statement made by the complainant under Section 161. Perusal of the statement made by the complainant under Section 154 nowhere suggested that bail petitioner was also present at the spot of occurrence and as such, his presence on the spot of alleged incident was itself doubtful. Although the complainant named the petitioner in his further statement under Section 161, but at the instant stage the Court found the story of the investigating agency to be not very convincing as far as involvement of petitioner in the alleged incident was concerned. Accordingly, the petition was allowed and the petitioner was enlarged on bail, subject to the conditions imposed. [Varinder Kumar v. State of Himachal Pradesh, 2017 SCC OnLine HP 1708, order dated 12.12.2017]

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