Raj Kumar vs State of Rajasthan

Prashant Kumar Agarwal, J.—Heard learned counsel for the parties.

The accused-petitioner has moved this third application for grant of bail u/s 439 Cr.P.C. in respect of FIR No. 146/2012 registered at Police Station, Udyog Nagar, Bharatpur under Sections 395, 397 read with Section 120-B IPC and Section 3/25 of the Arms Act.

The first application filed by the petitioner was dismissed by this Court on merit by a reasoned order dated 23.1.2013 mainly on the ground that he was identified by at least 2 witnesses during investigation as a person involved in the incident of dacoity. The second application for grant of bail was filed on behalf of the petitioner mainly on the ground that even after lapse of a period of more than one and half year since the date of arrest of the petitioner even charges have not been framed and trial has not commenced. The same was also considered by this Court and dismissed vide a reasoned order dated 13.2.2014 mainly taking into consideration the evidence collected during investigation and also looking to the seriousness of charges levelled against the petitioner. The present application has been filed on the ground that after dismissal of the second application statements of four material prosecution witnesses have been recorded, the copy of which has been filed alongwith the application.

In support of the present application, the learned counsel for the petitioner raised the following grounds:

(i) Two main prosecution witnesses PW. 3 Shri Vivek Anand and PW. 4 Shri Ram Singh said to be eye-witnesses of the incident have not supported the prosecution story during trial and they have been declared hostile. According to the learned counsel for the petitioner, both of these witnesses have denied in their respective statements that they correctly identified the person involved in the incident during investigation and they have also failed to identify any of the accused including the petitioner even during trial.

(ii) No recovery has been effected from the petitioner during investigation. Mere recovery of a ''Katta'' on the instance of the petitioner does not connect the petitioner with the incident.

(iii) Even PW. 1 Shri Narendra Kumar Vaswani and PW. 2 Shri Parasram have not fully supported the prosecution story during trial and there are material contradictions and improvements in their statements recorded during trial. A close look at their statements shows that before the identification parade was conducted during investigation the present petitioner was shown to them at police station after his arrest and, therefore, identification of the petitioner by these witnesses during identification parade and trial, is of no evidentiary value more particularly in view of the fact that recovery of the amount or any part of it allegedly looted during the course of incident has not been recovered from the possession of the present petitioner.

(iv) The petitioner is in custody since long and there is no likelihood of the trial to be completed in the near future.

On the other hand, learned Public Prosecutor controverting the submissions made on behalf of the petitioner submitted as below:

(i) Although, two of the eye-witnesses of the said incident PW. 3 Shri Vivek Anand and PW. 4 Shri Ram Singh have failed to identify the petitioner as a person involved in the incident during trial and they have also denied the fact that they identified the petitioner during identification parade, but they have supported the prosecution story to the extent that on 8.6.2012 a incident of dacoity occurred in the bank in which they were working at that time and several persons were involved in it, who were armed also. These witnesses have been declared hostile mainly by the reason that they refused to identify the petitioner as a person involved in the incident, but only by that reason their whole statement cannot be discarded.

(ii) The two other witnesses PW. 1 Shri Narendra Kumar and PW. 2 Shri Paras Ram have fully supported the prosecution story and also proved the identification parade conducted during investigation. Even if some contradictions and improvements have appeared in the statements of these two witnesses the same cannot be considered by this Court at this stage of the proceedings and it is for the trial Court to consider them at the time of final disposal of the case.

On consideration of submissions made on behalf of the respective parties and the material made available for my perusal as well as the statements of the aforesaid four material prosecution witnesses recorded during trial, the copy of which has been made available on record, I do not find any substantial change in the facts and circumstances of the case so as to allow the present application filed by the petitioner and to release him on bail in such a serious matter. It is well settled legal position that at time of consideration of bail only prima facie has to be seen whether from the material available on record involvement of the accused has been shown or not and at this stage of the proceedings the evidence produced during trial cannot be considered in detail.

Consequently, the third bail application filed by the petitioner is dismissed.