BHAVESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The third bail application of the petitioner was dismissed as not pressed vide order dtd. 8/1/2021. This order dtd. 8/1/2021 was challenged by the petitioner before Hon'ble the Supreme Court and the Hon'ble Supreme Court vide order dtd. 16/7/2021 allowed the petitioner to file a fresh bail application before this Court and this Court was directed to consider the same on merits, without being influenced by the order dtd. 8/1/2021. Hence, this present fourth bail application has been filed by the petitioner.

(2.) Learned counsel for the petitioner submits that the petitioner has already undergone custody of 09 years and 07 months yet the trial has not been concluded in the present case. He further submits that as per CCTV footage, on 21/6/2013, five persons were seen coming out of the place of incident, whereas call details of the deceased persons show that the mobile phones of the deceased persons were working till the next day of the incident i.e. 22/6/2013. He further submits that as per the statements of Investigating Officer, the phone calls were being made from the mobile phones of the deceased till 8:20 p.m. on 22/6/2013. He further submits that as per the statement of Investigating Officer, the mobile phones were recovered from the place of the incident which makes it clear that the deceased persons were alive till 22/6/2013. Learned counsel also submits that in the statement of the Investigating Officer, it has also come on record that he did not investigate with regard to the calls being made from the phones recovered on 22/6/2013 from the place of incident. He further submits that mobile phones/SIMS which are said to be used by Bhavesh- the present petitioner are not in his name. He further submits that the petitioner has been acquitted in two cases which were registered by the Police for forging the SIM cards. He further submits that statement of Kashish PW-13 cannot be relied upon as there are material contradictions vis.a.vis. her statement recorded under Sec. 161 and 164 Cr.P.C. Learned counsel also submits that the statement of Judicial Magistrate PW-46 does not disclose the names of accused persons. He submits that as per the CCTV footage produced, the weapons are not visible. There is no FSL report of the bloodstained clothes, weapons recovered and therefore, the recovery is irrelevant. He further submits that two accused persons Vikram Singh and Narendra Singh are already enlarged on bail. The motive attributed to the petitioner is also weird. Learned counsel for the petitioner has relied upon the judgments of Hon'ble the Supreme Court in the case of Parasram Bishnoi Vs. CBI (SLP Criminal No.3610/2020), Ghanshyam Sharma Vs. State of Rajasthan (SLP Criminal No.5397/2019), Sonadhar Vs. State of Chattisgarh (SLP Criminal No.529/2021) and the case of Arnab Goswami Vs. State of Maharashtra.

(3.) Learned counsel for the petitioner further submits that in all cases relied upon, the co-accused persons have been enlarged on bail while the trial is at its fag end. He, therefore, prays that the same benefit may also be extended to the petitioner and he may be enlarged on bail. Per contra, while opposing the bail application, the learned Pubic Prosecutor as well as learned counsel for the complainant submit that in the present case, there is clinching evidence against the present petitioner in the shape of CCTV footage, the statement of injured child eye witness- Kashish PW-13, recovery of weapons, bloodstained clothes, gold and silver jewellery, recovery of bike used in the incident, which was in the name of the petitioner, which is clearly visible in CCTV footage. He submits that case of present petitioner is distinguishable from the case of Vikram Singh and Narendra Singh as they were enlarged on bail on the ground that they were juvenile at the time of incident and therefore, the same benefit cannot be extended to the present petitioner.