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Judgment
The instant second bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner Vijay Kumar, who is in custody in relation to
F.I.R. No.440/2014 registered at Police Station Tibbi, District Hanumangarh, for the offences under Sections 302, 449 and 120-B IPC.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
It may be stated here that this court had allowed the first bail application of the petitioner by order dated 02.05.2017. The complainant assailed the said
order by filing Criminal Appeal No.1538/2017 in the Supreme Court. The said appeal was allowed by the order dated 12.12.2017 with the following
observations :-
“3. Having considered the matter we are of the view that the High Court fell in error in granting bail to the respondent accused. Counter
affidavit filed on behalf of the prosecution seems to show that the investigation against the respondent accused is not yet over. The ground of parity
on the basis of which the High Court thought it proper to grant bail to the respondent accused does not commend to us for acceptance. However, we
refrain from addressing the matter in any great detail as the same may cause prejudice to the respondent accused at a later stage of the
proceedings.â€
Pursuant to the said order cancelling the bail granted to the petitioner, charge-sheet has been filed and thereafter, this second bail application has been
moved by the petitioner.Â
Mr. Sandhu, learned counsel representing the petitioner, vehemently urged that no material/evidence is available on record of the case to establish that
the petitioner is even remotely connected with the double murder in relation whereof the above FIR came to be registered. He urges that apart
from the conjectural statements of the witnesses Ramswaroop, Ashwini Kumar and Pankaj, who were examined by the Investigating
Officer as late as in the month of July 2015, i.e. after more than 7 months of the incident, there is no material whatsoever worth the name on the
entire charge-sheet, which can even remotely connect the petitioner with the offences alleged. He urges that even these three witnesses simply
made conjectural hearsay aspersions that they came to know that the house adjoining to the place of incident had been taken on rent by some
miscreants, namely, Amit Bishnoi and Vijay Bishnoi, (not the petitioner herein) and that they might be the persons involved in the murder of Mangilal
and his wife Kamla Devi. He, thus, urged that as the entire charge-sheet presented by the police does not present even the slenderest material
worthy of inspiring confidence so as to connect the petitioner with the crime and as similary situated the other co-accused persons, namely, Kuldeep
@ Gabbar, Jitendra Middha @ Kaka, Suresh Bhadu, Rajveer @ Rajendra, Manpreet and Krishna @ Bagadi, have been enlarged on bail by this court,
the petitioner also deserves indulgence of bail.Â
Per contra, learned Public Prosecutor and Mr. Saruparia, learned counsel representing the complainant, have vehemently opposed the submissions
advanced by learned counsel for the petitioner and urged that the accused herein has been chargesheeted in a case of ghastly double murder. The
Investigating Officer has collected significant evidence to connect the petitioner with the offences alleged and thus, as per them, the petitioner does
not deserve indulgence of bail.
I have given my thoughtful consideration to the arguments advanced at bar and gone through the material available on record.
No doubt, the case involves heinous offences and ghastly facts inasmuch as 2 old persons, namely, Mr. Mangilal and Mrs. Kamla Devi, were
murdered in cold blood for gain. However, merely because the incident is of heinous nature, the prosecution cannot be absolved of its liability to
present admissible evidence so as to connect the accused with the offences attributed to them. In absence of admissible evidence, howsoever grave
the allegations, the charges cannot be brought home and the accused cannot be incarcerated in prison indefinitely. In the case at hand, the FIR in
relation to the double murder was lodged against unknown persons at Police Station Tibbi on 31.12.2014. The first informant Vishnu Dutt clearly
alleged that the murderer had taken away valuables after killing his parents. Various suspects were apprehended and attempt was made to subject
them to layered voice test and narcotic analysis test. It appears that some of the accused initially agreed to undergo these tests, but then failed to
appear in the court for giving their samples.
Be that as it may, the accused petitioner was arrested in this case as late as on 27.03.2017, i.e. after nearly 3 and half years of the incident.Â
Admittedly, no recovery either innocuous or incriminating was effected at the instance of the present petitioner. The accused Kuldeep who was
arrested in this case soon after the incident approached this court for grant of bail by filing Bail Application No.500/2016. This court summoned the
Investigating Officer concerned in the court to find out the exact nature of evidence available on record against the said accused. After evaluating the
entirety of facts and circumstances, this court accepted the bail application of Kuldeep @ Gabbar by order dated 15.02.2016, relevant portion whereof
is reproduced hereinbelow for the sake of ready reference :-
“The Investigation Officer Mr. R.D.Swami, Addl. S.P., Sangaria present in the Court states that the accused petitioner Kuldeep @ Gabbar has
been found involved in this case on the strength of the statements of the witnesses Surendra @ Shailendra, Bablu s/o Surendra and Sandeep s/o
Surendra as well as his own confessional statement in which he confessed about his involvement in the offence. He submits that it is a case of double
murder and thus extensive investigation was conducted and it was found that the petitioner along with co-accused stayed in the Dhani of Amit Kumar
which was located just near the place of the occurrence. The petitioner and the coaccused persons indulged in frequent reconnaissance activities
around the place of occurrence just before the incident. Thus, he states that the involvement of the accused has been duly found proved in the
incident.
Learned counsel Mr. D.L.Rawla contends that the petitioner has been falsely implicated in this case. There is no evidence whatsoever on the record
to connect him with the alleged offence. The alleged incident involving double murder of Shri Mangilal and Smt. Kamla Devi took place on 31.12.2014
at 7 P.M. The F.I.R. was lodged against unknown assailants at 8.15 P.M.  He submits that the investigation agency was unable to trace out the
real assailants and in order to cover up its failure, the statements of the above three witnesses were recorded as late as on 27.5.2015 for falsely
implicating the petitioner and some of the co-accused persons. These witnesses have given vague statements to the effect that the accused stayed at
the Dhani of Amit about 5-6 months before the incident and they also engaged in a party on the night of 31.12.2014. He submits that had there been
an iota of truth in the prosecution case that the accused petitioner was involved in the heinous offence of double murder then he would not have
remained around the place of occurrence on the fateful night so as to risk being discovered. He submits that the petitioner who has some criminal
cases registered against him, has been falsely implicated in this case because the I.O. was not able to locate the true assailants. He urges that the
petitioner has been implicated in this case purely on the basis of conjectures and surmises. He thus submits that the case is of no evidence whatsoever
and the petitioner who is in custody since 25.5.2015 deserves to be released on bail.
Per contra, the learned P.P. assisted by the I.O. and Mr. M.K.Garg, learned counsel for the complainant vehemently opposed the submissions
advanced by the learned counsel for the petitioner. They contend that it is a case involving gruesome murder of two persons. The principal accused
Vinod Kumar has not been arrested till date. Thus the petitioner should not be released on bail.
Heard and considered the arguments advanced by learned counsel for the parties and have gone through the material available on record.
The F.I.R. of the incident was lodged on 31.12.2014 at 8.15 P.M. against unknown persons. The petitioner’s involvement in this case has been
brought around for the first time in the statements of the above three witnesses who were examined 27.5.2015. All that has been stated by these
witnesses is that the accused petitioner and a few of the co-accused stayed in the Dhani of Amit in the month of December, 2014 and used to engage
in parties. They also did reconnaissance activities around the Dhani of the deceased. Whether or not this evidence is sufficient to connect the
petitioner with the alleged crime of double murder would be for the trial court to consider at the appropriate stage. However, the fact remains that no
witness examined during investigation alleged that the petitioner was seen in or around the place of occurrence at the time of the incident nor was any
incriminating recovery effected from him. In this view of the matter, this Court is of the opinion that the bail application filed by the petitioner
deserves to be accepted.
Manifestly, the case of the present petitioner stands on even better footing than that of Kuldeep @ Gabbar. It may be stated here that two persons
named Vijay Kumar, one being the present petitioner and the other being the brother of principal accused Amit Bishnoi, have been arraigned as
accused in this case. The prosecution has not even clarified as to whether Vijay Kumar referred to in the statements of 3 witnesses mentioned
above is the present petitioner or the other Vijay Kumar. The three star witnesses of the prosecution, namely, Ramswaroop, Ashwini Kumar and
Pankaj, were examined during investigation after nearly three months of the incident and even in their statements, they have given hearsay evidence,
admissibility whereof is debatable. Thus, for all practical purposes, there is no significant admissible evidence whatsoever available with the
prosecution so as to connect the petitioner with the alleged offences. In wake of the discussion made herein above, this court is inclined to accept
the instant bail application. However, it is made clear that the observations made hereinabove shall not prejudice the trial.Â
Consequently, the bail application is allowed. It is ordered that the accused-petitioner namely Vijay Kumar S/o Ramjilala arrested in connection with
F.I.R. No.440/2014 registered at Police Station Tibbi, District Hanumangarh shall be released on bail; provided he furnishes a personal bond of
Rs.50,000/- and two surety bonds of Rs.25,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all
dates of hearing and as and when called upon to do so. Â