JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioners namely Baljinder Singh Bajwa and Lakhwinder Singh, who are real brothers, have approached this court in the instant proceedings filed under Section 439 Code of Criminal Procedure, for grant of regular bail in Case FIR No. 251/15, dated 13.12.2015, registered at Police Station Indora, under Sections 452, 392, 307, 302 and 120-B Indian Penal Code. Respondent-State besides filing fresh status report has also made available complete record of investigation. ASI Sunil Kumar, I.O., P.S. Indora, District Kangra, H.P., has come present with records. Record perused and returned. 2. Close scrutiny of status reports, placed on record from time to time as well as record of investigation made available to this Court reveals that complainant namely Ram Mohamad Issa Singh, got his statement recorded under Section 154 CrPC, stating therein that on 12.12.2015, he had gone to Chandigarh in connection with court cases and returned back home at 10.30 pm. He disclosed to the police that after his return from Chandigarh, he had dinner with his brother Raj Vikram Rai and thereafter, they all went to sleep to their respective rooms at 11:30 pm. Above named complainant alleged that at 6.15am, person namely Jaspal alias Jas, who visits their house daily for milking the cow called out to him that somebody has beaten aunty and uncle and they are lying in a pool of blood. Complainant in his statement disclosed to the police that he opened the door of room of his parents and found that his parents had suffered injuries on their face and head and both were lying on their bed. Complainant further alleged that he also found his brother Raj Vikram lying in pool of blood in his room, and he had suffered injuries on his face and head. Complainant alleged that in both the rooms, locks of almirahs/locker were broken and cash and jewelry lying therein were missing. Complainant specifically disclosed to the police that his brother Raj Vikram whispered to him that he has been attacked by Baljinder’s men and 3-4 persons had entered the house and attacked him with sharp edged weapon. Complainant alleged that approximately, cash to the tune of Rs. 3.5 to 4 lakh and jewelry belonging to his mother and sister in law, who at that time had gone to her maternal house, alongwith 32 bore revolver and one gun (wisko) have been stolen. Complainant alleged that approximately, cash to the tune of Rs. 3.5 to 4 lakh and jewelry belonging to his mother and sister in law, who at that time had gone to her maternal house, alongwith 32 bore revolver and one gun (wisko) have been stolen. Complainant alleged that this incident happened between 12.00am to 5.00 am in the intervening night of 12/13.12.2015. Complainant disclosed to the police that Baljider Singh Bajwa, who is behind bars, is in litigation with his family on account of land dispute and he had extended threats to eliminate the entire family and as such, he has suspicion that his parents and brother have been attacked by Baljinder Singh Bajwa i.e. one of the petitioners. In the aforesaid background, FIR detailed herein above, came to be lodged against the bail petitioner namely Baljinder Singh. During investigation police found involvement of persons namely Surjeet Singh, Balbir Singh Bajwa and as such, subsequently, they also came to be named in the FIR and were arrested. 3. Victims/injured namely Dilbagh Rai, Smt. Avinash Rai and Raj Vikram Rai were taken to private hospital i.e. Amandeep Hospital Pathankot in the morning of 13.12.2015. Dilbagh Rai expired at the aforesaid hospital at Pathankot, whereas Smt. Avinash Rai was referred to Amandeep Hospital, Amritsar, but she also expired on 22.12.2015 on account of serious injuries suffered by her. Raj Vikram Rai, who was admitted in hospital at Pathankot was discharged on 22.12.2015. Though, Raj Vikram Rai, was discharged from hospital on 22.12.2015, but his statement under Sections 161 and 164 CrPC were recorded on 8th and 15th February, 2016 respectively, wherein he disclosed to the police that he and his parents were attacked and given beatings on the alleged date of incident by person namely Lakhwinder Singh, Balbir, Surjeet, Surender Singh and other 4-5 persons. On the basis of aforesaid statement made by Raj Vikram Rai, bail petitioner Lakhwinder Singh came to be named in the FIR and he was arrested on 17.2.2016 and since then he is behind bars. 4. Challan stands filed in competent court of law and as of today, 13 out of 38 prosecution witnesses stand examined. On the basis of aforesaid statement made by Raj Vikram Rai, bail petitioner Lakhwinder Singh came to be named in the FIR and he was arrested on 17.2.2016 and since then he is behind bars. 4. Challan stands filed in competent court of law and as of today, 13 out of 38 prosecution witnesses stand examined. Since statements of all the material prosecution witnesses, including the complainant stand recoded, coupled with the fact that both the bail petitioners are behind bars for more than 5 years, petitioners have approached this Court in the instant proceedings, for grant of regular bail, during the pendency of trial before learned court below. 5. Shri Kunal Thakur, learned Deputy Advocate General, duly assisted by Mr. Sanjay Jaswal, Advocate, representing the complainant, while fairly admitting factum with regard to filing of challan in the competent court of law, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioners, they do not deserve any leniency, as such, prayer made on their behalf for grant of bail, deserves outright rejection. While making this Court peruse evidence collected on record by the investigation agency, learned Deputy Advocate General, made a serious attempt to persuade this court to agree with his contention that both the bail petitioners in connivance with each other, attacked the old parents and brother of the complainant with an intention to kill them. While referring to the medical evidence adduced on record, especially, post mortem report, learned Deputy Advocate General contended that both Dilbagh Rai and Smt Avinash, died on account of injuries inflicted on their persons by the bail petitioners and their associates. Learned Deputy Advocate General while referring to the statement of Raj Vikram Rai , who is/was one of the injured, submitted that on the date of the alleged incident, the bail petitioner Lakhwinder Singh alongwith other accused, not only attacked two old persons, but also stole valuable articles. Mr. Thakur further submitted that since persons, who died in the alleged incident, had old enmity with bail petitioner Baljinder Singh Bajwa, he while in jail, planned and managed the alleged occurrence, and as such, no leniency deserves to be shown while considering petitions having been filed by bail petitioners. Lastly Mr. Mr. Thakur further submitted that since persons, who died in the alleged incident, had old enmity with bail petitioner Baljinder Singh Bajwa, he while in jail, planned and managed the alleged occurrence, and as such, no leniency deserves to be shown while considering petitions having been filed by bail petitioners. Lastly Mr. Kunal Thakur, contended that since statement of some of material prosecution witnesses remain to be recorded, it would not be in the interest of justice to enlarge the bail petitioners on bail, who in the event of being enlarged on bail, may not only flee from justice, but may also cause harm to the complainant and his family. 6. Mr. N. S. Chandel, learned Senior Counsel representing petitioners while refuting the aforesaid submissions made on behalf of the learned Deputy Advocate General, strenuously argued that the bail petitioners have been falsely implicated and they are behind bars for the last 5 years for no fault of theirs. While making this court peruse statement of complainant recorded under Section154 CrPC, juxtaposing statement of victim/injured Raj Vikram Rai, who survived the incident under Section 164 CrPC, Mr. Chandel, contended that story of prosecution is highly doubtful and unbelievable and cannot be made basis to conclude guilt of the bail petitioners, who have already suffered for a considerable time. Mr. Chandel, learned Senior Counsel, contended that statements of all material prosecution witnesses including the complainant stand recorded and as such, bail cannot be denied to the bail petitioners on the ground that statements of some of the witnesses remain to be recorded. He contended that all the remaining witnesses are formal witnesses, who otherwise, in no situation, can be won over by the bail petitioners in the event of their being enlarged on bail. Lastly, Mr. Chandel, learned Senior Counsel contended that there are two versions before the Court with regard to the alleged incident, one put forth by the complainant -Ram Mohamad Issa and second by injured-Raj Vikram Rai and both the versions being contradictory cannot be believed. 7. Before ascertaining correctness and genuineness of the submissions made by the learned counsel for the parties, this Court at the first instance, deems it fit to deal with the scope/ power under S.439 CrPC, to grant bail. 7. Before ascertaining correctness and genuineness of the submissions made by the learned counsel for the parties, this Court at the first instance, deems it fit to deal with the scope/ power under S.439 CrPC, to grant bail. No doubt, power to grant bail under S.439 is of wide amplitude, but at the same time, it is well settled that though grant of bail involves exercise of discretionary power of court but it is to be exercised in judicious manner and not as a matter of course. In this regard, reliance is placed on judgment passed by the Hon’ble Supreme Court in Ram Gobind Upadhya v. Sudarshan Singh, 2002 (3) SCC 598 , relevant para whereof reads as under:- “3.Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being: (a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 8. While determining whether case is fit for grant of bail, court considering bail application requires to balance numerous factors i.e. nature of offence, severity of the punishment and prima facie, view with regard to involvement of accused. Similarly, while determining whether case is fit for grant of bail, court is not required to sift entire evidence available on record because that is a matter of trial, however, court at that stage is required to examine whether there is prima-facie or reasonable ground to believe that accused has committed the offence and on a balance of considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. 9. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 10. Aforesaid judgment in Prashant Kumar’s case (supra) has been consistently followed in Ash Mohammad. Vs. 10. Aforesaid judgment in Prashant Kumar’s case (supra) has been consistently followed in Ash Mohammad. Vs. Shivraj, 2012 (9) SCC 446 , Ranjit Singh vs. State of Madhya Pradesh, 2013 (16) SCC 797 , Neeru Yadav, vs. State of UP, 2014 16 SCC 508 , Virupaksahappa Gouda vs. State of Karnataka, 2017 (5) SCC 406 and State of Orissa vs. Mahimananda Mishra, 2018 (10) SCC 516 . 11. Though while considering bail, court is not expected to assess the evidence in detail, to arrive at a conclusive finding on a chain of causation, but certainly court assessing plea of bail, is required to find a prima facie view of possibility of commission of the crime by the accused and not conclude that the alleged crime was in fact committed by the accused beyond reasonable doubt. It has been repeatedly held by Hon'ble Apex Court that since questions of grant of bail concern both liberty of individual undergoing criminal prosecution as well as interest of criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice, judge while accepting/rejecting prayer for bail, is duty bound to record reasons, which have weighed with court for use of exercise of discretionary power. Merely recording “having perused the record” and “on the facts and circumstance of case” does not sub-serve the purpose of a reasoned judicial order. Factors, which have weighed in mind of judge while rejecting/granting bail, are required to be recorded in the order to be passed. Since question of grant of bail, directly linked with liberty of individual undergoing criminal prosecution as well as interest of criminal justice system, judges are duty bound to explain basis, on which they have arrived at a conclusion. In this regard, reference is made on the judgment rendered by the Hon’ble Apex Court in case titled Mahipal v. Rajesh Kumar @ polia and Anr., in Criminal Appeal No. 1843 of 2019 @ SLP (Crl.) No. 6339 of 2019, which reads as under: 23. Merely recording “having perused the record” and “on the facts and circumstances of the case” does not sub-serve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty bound to explain the basis on which they have arrived at a conclusion. 24. In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this Court was required to assess the correctness of a decision of a High Court enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court, discussed the law on the grant of bail in nonbailable offences and held: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.” (Emphasis supplied) 25. Where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of the nonapplication of mind which may require the intervention of this Court. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specific reasons as to why bail should be granted. 12. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specific reasons as to why bail should be granted. 12. If aforesaid judgments rendered by Hon'ble Apex Court from time to time are perused, same suggest that while considering bail, though nature and gravity of accusations are of utmost importance, but same time, court is also required to infer from the material available on record whether there is any prima facie reason or ground to believe that accused had committed the offence. Besides above, court while exercising power under S.439 CrPC, is also required to see the danger of accused fleeing or absconding if released on bail and likelihood of the offence being repeated. 13. Now, in the aforesaid backdrop and law in vogue, this court would proceed to adjudicate the matter on merits. 14. Having heard learned counsel for the parties and perused material on record, this court finds that in the alleged incident, unfortunately two old people namely Dilbagh Rai and Avinash Rai lost their lives and one person namely Raj Vikram Rai suffered serious injuries. Though above named Raj Vikram Rai after having recovered from injuries was discharged on 22.12.2015, but now, he is also stated to have expired on 22.12.2019. It is also not in dispute that on the date of the alleged incident, bail petitioner Baljinder Singh Bajwa was lodged in Gurdaspur jail (Punjab), on account of conviction in a case filed by Dilbagh Rai under Section 138 of Negotiable Instruments Act. Though above named Baljinder Singh Bajwa has already served the sentence in case under S.138 of the Negotiable Instruments Act, but at present, he is behind bars on account of alleged involvement in the case at hand. It is also not in dispute that both the bail petitioners Baljinder Singh Bajwa and Lakhwinder are real brothers, but material on record reveals that there was some old litigation inter-se Baljinder Singh Bajwa, Lakhwinder Singh and deceased Dilbagh Rai and his family, on account of ownership of some plywood factory. Baljinder Singh Bajwa, in his FIR, had also made Lakhwinder Singh an accused alongwith Dilbagh Rai and his family members. Baljinder Singh Bajwa, in his FIR, had also made Lakhwinder Singh an accused alongwith Dilbagh Rai and his family members. Record reveals that on account of dishonoring of cheque, case under section 138 of Negotiable Instruments Act, came to be initiated against Baljinder Singh, wherein court having found him guilty convicted and sentenced him to undergo three years imprisonment. 15. Precisely, the case of the prosecution is that though at the time of alleged incident, Baljinder Singh Bajwa was lodged at Gurdaspur jail, but he in connivance with Surjeet Singh, who happens to be his brother in law, planned and managed the attack on parents of the complainant, but this court has not been able to find any concrete evidence to this effect, if any, collected on record by prosecution, save and except that Baljinder Singh Bajwa while serving sentence was admitted in hospital and there, he had a meeting with co-accused Surjeet Singh. Bail petitioner Lakhwinder Singh, who was in litigation with Baljinder Singh Bajwa pleaded his innocence, but he came to be named in FIR on the statement of injured/victim Raj Vikram Rai, recorded under S.164 CrPC, At this juncture, if statement of the complainant recorded under Section 154 CrPC is perused, it suggests that immediately after the alleged attack, Raj Vikram Rai whispered in the ear of the complainant that he has been attacked by Baljinder Singh Bajwa’s men. If the aforesaid statement of complainant under Section 154 Cr.PC., is perused in its entirety, it nowhere suggests that Raj Vikram Rai named the bail petitioner Lakhwinder Singh rather, he categorically disclosed to the complainant-Ram Mohamad Issa that he has been attacked by Baljinder’s men. However, subsequently, Raj Vikram Rai in his statement recorded under Section 164 CrPC, alleged that on the date of the alleged incident, the bail petitioner Lakhwinder Singh entered their house with co-accused Surjeet Singh, Balbir Singh Bajwa and Devinder Kaur, wife of Lakhwinder Singh and attacked him. 16. Version of the complainant recorded under Section 154 CrPC is totally contradictory to the version of Raj Vikram Rai recorded under S. 164 CrPC, especially, with regard to the names of the accused. 16. Version of the complainant recorded under Section 154 CrPC is totally contradictory to the version of Raj Vikram Rai recorded under S. 164 CrPC, especially, with regard to the names of the accused. If Raj Vikram Rai had identified the persons at the time of incident, it is not understood that why he could not disclose all these names to his brother, Ram Mohamad Issa, who immediately after the alleged incident had come to the room. Aforesaid fact gains significance on account of the fact that Raj Vikram Rai in his statement recorded under S.164 CrPC, stated nothing against the bail petitioner Baljinder Singh Bajwa, who was otherwise named at the first instance by the complainant, that too on the basis of information given by Raj Vikram Rai. Leaving everything aside, there is yet another aspect of the matter i.e. Raj Vikram Rai was admitted in Amandeep hospital, Pathankot in the morning of 13.12.2015, when he was declared medically unfit to give the statement. But it is also not in dispute that above named person was discharged from the hospital on 22.12.2015, however, interestingly, his statement under S.161 and 164 CrPC came to be recorded after an inordinate delay of more than one and half months i.e. 8th and 15th February, 2016, respectively. Learned Deputy Advocate General argued that since above named person was declared unfit to make statement, his statement could not be recorded immediately after his discharge. This Court with a view to ascertain opinion, if any, rendered by the medical officer attending upon Raj Vikram Rai ordered respondent-State to produce the record with respect to admission and discharge of above named Raj Vikram Rai. No doubt, perusal of record reveals that on 13th December, 2015, Raj Vikram Rai was declared unfit to give statement, but in discharge certificate issued on 22.12.2015, there is no mention that Raj Vikram Rai is unfit to give statement. If it was so, why police took almost one and half month to record the statement of Raj Vikram Rai, who was otherwise eye witness/injured to/in the alleged incident. Statement of Raj Vikram Rai recorded under S.164, if read juxtaposing statement of the complainant under Section 154 CrPC, it certainly compels this court to agree with the contention of learned counsel for the petitioner that there are lot of contradictions and inconsistencies, especially with regard to the names of the accused. 17. Statement of Raj Vikram Rai recorded under S.164, if read juxtaposing statement of the complainant under Section 154 CrPC, it certainly compels this court to agree with the contention of learned counsel for the petitioner that there are lot of contradictions and inconsistencies, especially with regard to the names of the accused. 17. Apart from above, version put forth by the complainant, in his statement recorded under 154 CrPC, if read in conjunction with his statement recorded in learned trial court, creates suspicion with respect to correctness of prosecution story. If version of the complainant is believed, it suggests that at the time of the alleged incident, though he was in the house but could not hear cries/screams, if any, raised by the victim/injured. In the case at hand, victim/injured were attacked with sharp edged weapons on their faces and heads and some scuffle also took place inter-se attackers and Raj Vikram Rai. If aforesaid version is believed, it is difficult to digest/believe that person living next to the room of the victim did not hear anything. Though, as per prosecution story, all the victims, Dilbagh, Ms. Avinash and Raj Vikram Rai were found lying on their beds in their rooms in pool of blood by the complainant next morning, but if the statement of witness namely Jaspal alias Jas is perused, it suggests that at 6.00 am, he came to the house of the complainant and victim and knocked the door. Once door was not opened by occupants of the house, he peeped from the window of the kitchen and called names of the family members and allegedly, Dilbagh Rai while coming backwards said that “everything is finished”, meaning thereby, at 6.30 am, deceased Dilbagh Rai was conscious and was able to speak. If it is so, it is not understood, that why he did not call other family members, especially complainant Ram Mohamad Issa, who was sleeping in the adjacent room. It has come in the statement of this witness that complainant came to the room of Victim- Raj Vikram Rai , Dilbagh and Avinash after 30 minutes of his knocking the door that too on the call given by his sister, who was informed by person namely Jaspal alias Jas. Otherwise also, as per prosecution story, attackers, broke almirahs, lockers and stole valuable articles. Otherwise also, as per prosecution story, attackers, broke almirahs, lockers and stole valuable articles. If aforesaid version is believed, there would have been some noise on account of use of hammer or rod, if any, used by attackers to break lockers/almirahs, but no such noise was ever heard by the complainant, who was present in the house that too in the near vicinity at the time of alleged incident. 18. Leaving everything aside, if report of Scientific Officer, RFSL, Dharamshala, who visited the spot on 13.12.2015, is perused, it nowhere suggests that the almirahs and lockers were broken by using hammer or other tools. Aforesaid report has categorically recorded that no marks of tools on doors and windows of house were found. Aforesaid officer has reported that there is no evidence of opening of the almirahs and lockers using force. No doubt, in the case at hand, two old persons have been murdered and one sustained serious injuries, but till the time, guilt of the bail petitioners is not established in accordance with law, there appears to be no justification to keep them behind bars for an indefinite period during trial, especially, when they have already suffered for more than five years. Since the bail petitioner Baljinder Singh Bajwa was lodged in jail at the time of alleged incident, his complicity in the case cannot be concluded on the basis of evidence, available at this stage. As has been noticed herein above, there is no evidence, that Baljinder Singh Bajwa while sitting in jail, managed attack on the deceased and victim, Raj Vikram Rai , save and except that co-accused Surjeet Kumar had gone to meet him in the hospital, while he was serving the sentence. Similarly, involvement of Lakhwinder Singh in the case at hand, becomes doubtful on account of inconsistent stand of the complainant and victim Raj Vikram Rai. If Raj Vikram Rai had identified Lakhwinder on the date of the incident, he would not have missed to name him, while he disclosed name of Baljinder Singh Bajwa to his brother, immediately after the alleged incident. Interestingly, in the case at hand, Raj Vikram Rai, while making statement under S. 164, gave clean chit to Baljinder Singh Bajwa, but named Lakhwinder Singh. No doubt, medical evidence adduced on record does indicate that deceased Dilbagh Rai and Ms. Interestingly, in the case at hand, Raj Vikram Rai, while making statement under S. 164, gave clean chit to Baljinder Singh Bajwa, but named Lakhwinder Singh. No doubt, medical evidence adduced on record does indicate that deceased Dilbagh Rai and Ms. Avinash died on account of injuries suffered by them in the alleged incident, but such medical evidence cannot be read in isolation to conclude complicity of the petitioners in the alleged offence, especially when their presence on the spot is doubtful. 19. Though, aforesaid aspects of matter are to be considered and decided by the learned court below on the basis of totality of evidence collected on record by the investigating agency, but keeping in view the discrepancies, as have been taken note herein above, there appears to be no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when they have already suffered for more than five years. Statements of all the material prosecution witnesses including complainant Ram Mohamad Issa stand recorded. No doubt, more than 25 witnesses remain to be examined, but list of witnesses clearly indicate that all the remaining witnesses are formal witnesses, who otherwise being officials, cannot be won-over by the bail petitioners, in the event of their being enlarged on bail. 20. Interestingly, in the case at hand, this Court finds that Raj Vikram Rai, who, apart from being injured, was the sole eye witness, was called once for recording of his statement in court, but before his statement could be recorded, he, unfortunately expired in December, 2019, whereas on one pretext or the order, complainant failed to get his statement recorded in the trial court for a considerable time. Record reveals that complainant repeatedly came to be summoned for recording his statement, but on one pretext or the other, he failed to appear, as a consequence of which, trial was delayed. Finally vide order dated 17.3.2021, passed by this Court, complainant was compelled to remain present before the learned court below for recording his statement on 22.3.2021. 21. As of today, entire case of prosecution hinges upon version put forth by the complainant, Ram Mohamad Issa, who alongwith Jaspal alias Jas was the first to reach the spot of occurrence. Finally vide order dated 17.3.2021, passed by this Court, complainant was compelled to remain present before the learned court below for recording his statement on 22.3.2021. 21. As of today, entire case of prosecution hinges upon version put forth by the complainant, Ram Mohamad Issa, who alongwith Jaspal alias Jas was the first to reach the spot of occurrence. Since statement of complainant stands recorded, there is no force in the argument of learned Deputy Advocate General that in the event of petitioner’s being enlarged on bail, bail petitioners may tamper with prosecution evidence. Otherwise also, apprehension expressed by learned Deputy Advocate General, can be best met by putting the bail petitioners to stringent conditions. 22. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 23. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:- “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 24. Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. The relevant paras of the aforesaid judgment are reproduced as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re- Inhuman Conditions in 1382 Prisons. 25. Bail petitioners are behind bars for more than five years, but charges are yet to be framed. Accused cannot be kept behind bars for indefinite period pending trial. Delay in criminal trial has been held to be in violation of right guaranteed to the accused under Section 21 of the Constitution of India. In this regard, reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- “11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 ). 26. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs. 1,00,000/- each, with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: a. They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. They shall not leave the territory of India without the prior permission of the Court. e. They shall hand over their passports to the investigating Agency. f. They would report to the concerned police station every 15 days. g. Petitioners shall not enter the area within the radius of 2 kms of the house of the complainant. 27. e. They shall hand over their passports to the investigating Agency. f. They would report to the concerned police station every 15 days. g. Petitioners shall not enter the area within the radius of 2 kms of the house of the complainant. 27. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 28. Any observations made hereinabove shall not be construed to be a reflection on the merits of the main case and shall remain confined to the disposal of these applications alone. The bail petitions stand disposed of accordingly. Copy Dasti.