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2023 DIGILAW 492 (RAJ)

Bhavesh @ Bunty v. State of Rajasthan

2023-02-13

VINIT KUMAR MATHUR

body2023
ORDER : 1. The third bail application of the petitioner was dismissed as not pressed vide order dated 08.01.2021. This order dated 08.01.2021 was challenged by the petitioner before Hon'ble the Supreme Court and the Hon'ble Supreme Court vide order dated 16.07.2021 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 dated 08.01.2021. 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 21.06.2013, 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. 22.06.2013. 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 22.06.2013. 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 22.06.2013. 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 22.06.2013 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 Section 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. her statement recorded under Section 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. 4. 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. Learned Public Prosecutor further submits that the trial is at the fag end as the matter is fixed for the statement of accused under Section 313 of Cr.P.C. He further submits that bail application of similarly situated co-accused Kamal Vaishnav has already been rejected by this Court on 17.08.2022. 5. I have considered the submissions made at the Bar and gone through the relevant record of the case. 6. 5. I have considered the submissions made at the Bar and gone through the relevant record of the case. 6. In the present case, five brutal murders have taken place and the fact that the petitioner who was regularly visiting the deceased persons is clearly borne out from the evidence which has come on record. As far as the identification of the petitioner is concerned, there is ample evidence to show that at the time of incident, the petitioner was present there. Besides this, in the statement of the child eye-witness Kashish PW-13, in no uncertain terms she has named the present petitioner in her statement. The statement of PW-13 Kashish gets corroboration from CCTV footage placed on record where the petitioner has been seen coming out of the house/place of the incident. Besides this, the recovery of weapons used in the incident has been made from the present petitioner and the bike recovered from the petitioner can clearly be identified from CCTV footage shows the involvement of the present petitioner in the incident which had taken place on 21.06.2013. 7. The argument of the learned counsel that the mobile phones of the deceased were still functioning till the next day, is noted to be rejected only on the ground that even if the injured persons were not dead and they were seriously injured, they might have tried to call some persons for help and in that eventuality, perhaps the mobile phones were working. Even otherwise, if the incoming calls were made on these mobiles, in that case, they might be in operation, therefore, the petitioner cannot get any benefit on the ground of that the mobile phones were working even after the date of incident i.e. till the next date. The credibility of the CCTV footage cannot be doubted at this stage because, if the petitioner is seen in those CCTV footages, then it is for the trial court to evaluate the weightage of the same at the time of decision. The acquittal of the petitioner in two cases for forging the SIM also does not help the petitioner, as in the present case, there is ample evidence which shows the involvement and presence of the petitioner at the time of incident and at the place of occurrence. 8. This Court feels that the crime was brutal and committed in a gruesome and depraved manner. 8. This Court feels that the crime was brutal and committed in a gruesome and depraved manner. Considering the fact that gruesome murder of five persons including a two year old child (Tanish) in the incident and the fact that the petitioner was a regular visitor at their place having been established in the present case and merely because the petitioner is facing incarceration for almost 10 years, cannot be a ground to enlarge the petitioner on bail. Injuries attributed to the child Tanish are reproduced as under:- (1) Incised wound 3x2 cm on all part of neck up to the trachea. (2) Stab wound 2x2 cm on all part of neck. (3) Incised wound 4x2 cm marks dept in lower part of neck. 9. The bail application of similarly situated co-accused-Kamal Vaishnav has already been dismissed by a co-ordinate Bench of this Court vide order dated 17.08.2022. The case of the present petitioner is clearly distinguishable from the case of Vikram Singh and Narendra Singh who are bailed out on the ground of juvenility. 10. Taking into consideration the overall facts and circumstances of the case, the seriousness of the charges and looking to the nature of accusation and gravity of the offence without expressing any opinion on the merits of the case, I am not inclined to grant bail under Section 439 Cr.P.C. to the petitioner at this stage. Accordingly, the present fourth bail application preferred by the petitioner under Section 439 Cr.P.C. is dismissed. 11. Since the petitioner has suffered incarceration for 09 years and 07 months and trial has not yet been concluded, therefore, the trial court is directed to conduct the proceedings on day-to-day basis and complete the same at the earliest, preferably within a period of one month from the date of receipt of certified copy of this order. 12. Needless to say, the observations made by this Court shall not influence the trial court while passing the final order in the trial proceedings.