Rajasthan High Court - Jodhpur
Neta Ram vs State Of Rajasthan on 23 May, 2023
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2023/RJJD/016570]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3075/2023
Neta Ram S/o Pokhar Ram, Aged About 32 Years, R/o Nandia
Prabhawati P.S. Bhopalgarh Dist. Jodhpur Raj.
(The Petitioner Is Presently Lodged In Central Jail Jodhpur)
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner(s) : Mr. Vikas Balia, Sr. Advocate, assisted
by Mr. Vishan Das Vaishnav.
For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG, with
Mr. Rajat Chhaparwal.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 23/05/2023 This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.72/2021, registered at Police Station Kotadi, District Bhilwara, for offences under Sections 147, 148, 149, 332, 353, 307, 411, 427, 440, 420, 467, 468, 471, 474, 302/34, 120-B, 201 & 202 of the IPC and Section 3/25 read with Sections 35, 25(6) & 28 of the Arms Act.
As per prosecution, SHO, PS Kotadi received an information that two vehicles both pick up, fully loaded with contraband (poppy straw) along with two Scorpios are approaching Kotadi. Upon receiving the aforesaid reliable information, police team immediately reached Mansha Road, Kotadi Bypass and blocked the area concerned. After some time, a black Scorpio with registration No.RJ-14-UG-4301, was seen coming from Nandrai. After flagging (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (2 of 9) [CRLMB-3075/2023] down the vehicle, when police officials approached the vehicle, the driver of the vehicle with an intention to run the vehicle over the police officials, accelerated it towards them and fled away.
As per prosecution, after some time, another black Scorpio and a pickup came from Nandrai in full speed. On seeing the police officials, drivers of the said vehicles took a U-turn back towards Nandrai. Constable Kamlesh and Badan Singh on reaching near the vehicle (Scorpio), saw the driver and two persons sitting with firearms who opened fire on the police officials resulting in Constable Onkar Singh being shot in the chest.
During investigation, police caught hold of co-accused Sunil Dudi, who in his information under Section 27 of the Evidence Act named present petitioner as a co-occupant of black Scorpio with registration No.RJ-14-UG-4301, which fled away from the site.
Learned counsel for the petitioner at the outset submitted that the petitioner has been implicated in the present case on the basis of the disclosure statement of co-accused Sunil Dudi. Learned counsel submitted that co-accused Sunil Dudi (S.B. Crl. Misc. IInd Bail Application No.4424/2023) has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 25.04.2023. Learned counsel submitted that the case of the petitioner is not distinguishable from that of co-accused Sunil Dudi and therefore, he may also be extended concession of bail.
The order dated 25.04.2023 passed by the co-ordinate Bench of this Court enlarging co-accused Sunil Dudi is reproduced herein below for ready reference:-
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[2023/RJJD/016570] (3 of 9) [CRLMB-3075/2023] "1. Petitioner accused seeks bail in case bearing FIR No.72/2021 registered under Sections 147, 148, 149, 332, 353, 307, 411, 427, 440, 420, 467, 468, 471, 474, 302/34, 120-B, 201 and 202 of the IPC and under Sections 3/25 read with Section 35, 25 (6), 28 and 5/27 of Arms Act with Police Station Kotadi, District Bhilwara.
The first bail application of the petitioner was dismissed as not pressed vide order dated 03.03.2023.
2. I have heard the arguments and gone through the record.
3. Learned counsel representing the petitioner has fervently and vehemently argued that the petitioner is an innocent person and entire allegations so levelled by the police against the petitioner is totally false, vague and baseless, rather the same are motivated and raised only because of the fact that some of persons had allegedly fired at a police constable resulting into his death. It is argued that there is no concrete evidence to show direct nexus between the petitioner and the alleged crime, rather case of the prosecution is based on surmises and conjectures instead of sound legal evidence; that only on the basis of interrogation note of the applicant and statements of co-accused, he has been implicated as an accused in the case and there is no prima facie substantive evidence and material against the petitioner on the record.
4. It is further argued that except the statements of the coaccused and interrogation note of the petitioner there is nothing on record against the petitioner which proves that the petitioner has participated in the conspiracy with the prime accused in committing alleged offence. It is also not proved that the prime accused has committed the crime at the instance and instigation of the petitioner; that no evidence is available on record which proves that the applicant was seen with any of prime accused or was sitting any of the vehicle when the alleged incident took place. The petitioner was also not in the conscious possession of any of the vehicle.
5. It is further argued that as per the result of the investigation, the petitioner is said to be sitting in a Scorpio vehicle No. RJ-14- UG-4301, which came first of all on the spot; that amongst the police personnal present on the spot, SHO Nand Singh himself has, in his statement under Section 161 Cr.P.C., stated that prior to opening of fire by the persons sitting in other vehicle, (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (4 of 9) [CRLMB-3075/2023] the vehicle No. RJ-14-UG-4301 had ran away from the spot towards Kotadi. It is further argued that eye- witness constable Lokendra Singh has stated that occupants of third vehicle had fired at the Police party and allegations of fire and committing the murder of constable Onkar is levelled against other co-accused.
6. It is further argued that identification parade of petitioner was not conducted to establish his identity and presence at the place of occurrence. It is also not the case of the prosecution that any contraband was recovered from the above mentioned first vehicle, in which the applicant was allegedly sitting. No fire arm has been recovered from the applicant in the present FIR but a fire arm, which was recovered in an another FIR No.156/2021 lodged against the petitioner at the Police Station Phalodi, is said to have been recovered in the instant case which is an afterthought.
7. It is further argued that it has not been stated in the statements under Section 161 of Cr.P.C. of any of the witnesses that they have seen or identified the petitioner sitting in the first vehicle. The petitioner has been implicated as accused in the instant case only for his alleged involvement in the criminal conspiracy and being a member of the gang. The applicant has nothing to do with the second instant of firing in the jurisdiction of another Police Station nor he is named as an accused in that FIR.
8. It is also argued that there is no material on the record to show that petitioner had any conspiracy with the alleged prime accused, neither he had any apprehension or knowledge of the possible act and intention of the committing the alleged crime by the prime accused. Since the investigation has been completed and trial of the case is likely to take sufficient time to conclude, petitioner is in custody for last 2 years i.e. from 18.04.2021 and no useful purpose would be serve by the keeping the petitioner in further incarceration; that persons facing charge of harboring the accused have already been enlarged on bail, therefore, it has been prayed that looking to the fact and circumstances of the case and role attributed to the petitioner, he may be granted benefit of bail.
9. Per contra, learned Public Prosecutor has opposed the bail application and submitted that in the facts of the present case, it is expedient that accused be kept in the (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (5 of 9) [CRLMB-3075/2023] custody. Two police persons have murdered on the same night by the gang members consisting of the petitioner, to avoid being apprehended during the illegal drug trafficking. Evidence of photograph of vehicle used has appeared in the CCTV footage of routes through which their vehicles have passed through. The applicant is a person of criminal antecedent against whom many other cases have registered in the jurisdiction of many Police Station including serious offence. According to him, the entire chain of events is proved against the petitioner therefore, looking to the gravity of the charges levelled against the petitioner, the instant bail application is liable to be rejected.
10. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and have perused the record carefully.
11. Taking into account totality of the facts and circumstances on record, the role attributed to the petitioner and in view of submissions made on behalf of the petitioner, this Court is of the opinion that it is a fit case for grant of indulgence of bail to the petitioner. Consequently the 2nd bail application is accepted. It is directed that the accused-petitioner Sunil Dudi S/o Shri Opa Ram Bishnoi arrested in connection with the F.I.R. No.72/2021 registered at Police Station Kotadi, District Bhilwara shall be released on bail provided he furnishes a personal bond and two surety bonds of sufficient amount 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. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future." Shri Anil Joshi, G.A. cum A.A.G. vehemently opposed the bail application. Drawing attention of the Court towards para 6 of the order dated 25.04.2023 (reproduced herein above), learned counsel submitted that the benefit of bail was extended to co- (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (6 of 9) [CRLMB-3075/2023] accused Sunil Dudi on the ground that no identification parade to establish his identity and presence at the place of occurrence was conducted. On the contrary, in the present case, test identification proceedings in respect of the present petitioner were conducted on 27.04.2021 in which eye-witnesses of the incident namely Nand Singh (Sub Inspector), Rajendra Singh (Head Constable) and Kamlesh Kumar (Constable) of PS Kotadi had identified him, establishing his presence at the place of occurrence.
Learned counsel further submitted that on the basis of the information supplied by present petitioner under Section 27 of Indian Evidence Act, one 12 Bore Shotgun with four live cartridges has been recovered. Learned counsel submitted that after thorough investigation, charge sheet against present petitioner for offences under Sections 147, 148, 149, 332, 353, 307, 411, 427, 440, 420, 467, 468, 471, 474, 302/34, 120-B, 201 & 202 of the IPC and Section 3/25 read with Sections 35, 25(6) & 28 of the Arms Act has been filed before competent criminal court. Learned counsel submitted that looking to the seriousness of the accusations levelled against present petitioner and his presence on the spot at the time of incident, he does not deserve to be enlarged on bail.
In rebuttal, learned counsel for the petitioner submitted that while granting bail to co-accused Sunil Dudi, the co-ordinate Bench had not taken into consideration only one aspect of the matter i.e. test identification parade. Learned counsel submitted that the co-ordinate Bench in its order dated 25.04.2023 has (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (7 of 9) [CRLMB-3075/2023] made a threadbare discussion of various aspects of the matter which are as follows:-
i) the petitioner was not sitting in the Scorpio from which gunshots were fired resulting in death of Constable Onkar Singh.
ii) the contraband was not recovered from the vehicle in which petitioner was sitting.
iii) the petitioner has not been named as an accused in the FIR.
iv) the petitioner has been implicated as an accused only for his alleged involvement in the criminal conspiracy and being member of a gang.
v) the petitioner is in custody for almost two years and no useful purpose would be served by keeping petitioner in further incarceration.
vi) the persons facing charge of harbouring the accused have already been enlarged on bail.
Learned counsel submitted that other than co-accused Sunil Dudi, Sunil Ram Babal (S.B. Criminal Miscellaneous Bail Application No. 16889/2021), Ramdin (S.B. Criminal Miscellaneous IInd Bail Application No. 11943/2021), Mahesh Kumar Nidharwal (S.B. Criminal Miscellaneous Bail Application No. 17257/2021), Paras (S.B. Criminal Miscellaneous Bail Application No. 13025/2021), Sandeep @ Sethi (S.B. Criminal Miscellaneous Bail Application No. 3917/2022), Dinesh Kumar (S.B. Criminal Miscellaneous 2nd Bail Application No. 13104/2022), Ramniwas (S.B. Criminal Miscellaneous 3rd Bail Application No. 15271/2022) and Pushpendra Singh (S.B. Criminal Miscellaneous 2 nd Bail (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (8 of 9) [CRLMB-3075/2023] Application No. 495/2023) have also been granted indulgence of bail by the co-ordinate Bench of this Court.
Heard learned counsel for the petitioner and learned counsel for the respondent- State. Perused the material available on record.
Having considered rival submissions, facts and circumstances of the case, this Court finds that the petitioner is in custody since 23.04.2021 and has been implicated in the present case on the basis of disclosure statement furnished by co-accused Sunil Dudi. Apart from the fact that test identification parade was not conducted against co-accused Sunil Dudi, all other circumstances/ chain of events against present petitioner are at par with co- accused Sunil Dudi.
This Court prima facie finds sufficient force in the argument advanced by the learned counsel for the petitioner that the co- ordinate Bench while enlarging co-accused Sunil Dudi has not considered only one aspect of the matter i.e. test identification parade. The detailed order passed by co-ordinate Bench dated 25.04.2023 clearly indicates that the bail has been granted to co- accused Sunil Dudi after taking into consideration the totality of facts and circumstances available on record so also the role attributed to co-accused Sunil Dudi in connection with FIR No.72/2021, PS Kotadi, District Bhilwara.
In the view of aforesaid discussion, in the prima facie opinion of this Court, the case of the petitioner is not distinguishable from that of co-accused Sunil Dudi who has already been enlarged on (Downloaded on 23/05/2023 at 09:25:08 PM) [2023/RJJD/016570] (9 of 9) [CRLMB-3075/2023] bail. This Court without expressing any opinion on merits/demerits of the case is inclined to enlarge the petitioner on bail.
Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Neta Ram S/ o Pokhar Ram arrested in connection with F.I.R. No.72/2021, registered at Police Station Kotadi, District Bhilwara, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.
It is made clear that the Court has not entered into the merits of the case and none of the observations herein, by itself, would operate prejudicial to the interests of the parties nor shall have any bearing on the final verdict by the Trial Court.
(KULDEEP MATHUR),J 30-prashant/-
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