The conduct of the accused, including making calls to witnesses and their subsequent turning hostile, raised strong presumption against the accused, influencing the court's decision to dismiss the bail application.

JUDGMENT

Tushar Rao Gedela, J.

[The proceeding has been conducted through Hybrid mode]

1. This is an application under section 439 Cr.P.C., 1973 filed by the applicant seeking regular bail in FIR No. 207/2015, registered under section 302 IPC with P.S. Noida, Sector - 49, which was subsequently transferred to CBI and was renumbered as CBI RC03(S)/2016/CBI/SC-III/New Delhi.

2. The case of the prosecution is as under:

a. That, an FIR was registered on 13.04.2015 by Sh. Dharam Veer Singh u/s 302 IPC, 1860 at P.S. Noida, Sector 49, with reference to the murder of his son against unknown persons.

b. That after registration of the case, investigation was entrusted to the then Station Officer Manoj Yadav.

c. That the father of the deceased filed a writ petition before the High Court of Judicature at Allahabad, praying for transfer of investigation to CBI.

d. That the case was transferred to CBI pursuant to the order dated 26.04.2016 passed by the High Court of Judicature at Allahabad directing transfer of investigation of FIR No. 207/2015 dated 13.04.2015 registered at P.S. Sector 49, Noida, District Gautam Budh Nagar, Uttar Pradesh (Case Crime No. 276 of 2015) and consequently, the FIR came to be registered by the CBI as FIR No. RC03(S)/2016/CBI/SC-III/NEW DELHI dated 14.06.2016 u/s 120-B r/w 302, 307, 398 & 201 IPC, 1860 & Sections 25, 27 of The Arms Act, 1959.

e. That almost after a year of investigation, CBI came to the conclusion that conspiracy was hatched amongst the applicant herein Shashank Jadaun, Pankaj Kumar alias Pankaj Raghav (now expired) and Manoj Kumar to commit robbery of big vehicle like Fortuner Car from Noida-Ghaziabad Highway Area for earning some easy money. That allegedly led to the accused persons making an attempt of robbing the new Fortuner Car from Ankit Chauhan since deceased on 13.04.2015 and gunshots were fired, resulting into the untimely demise of Ankit Chauhan while Mr. Gagan Dudhoria, co-passenger escaped. On 01.06.2017, the CBI claimed to have had a breakthrough, in that, the CBI allegedly found a car alleged to have been used in the crime and subsequently, the applicant Shashank Jadaun was arrested along with co-accused Manoj and it was revealed that the accused persons committed the crime to rob the Fortuner Car and to sell it to one Satpal Bhatti.

3. Ms. Bhandari, learned counsel appearing for the applicant submits that the applicant has been in judicial custody since 02.06.2017 till now barring 2 days of custody parole granted by this Court and hence, had undergone an incarceration for a period of approximately a little more than 6 years 2 months till date. Ms. Bhandari further submits that though the trial has already commenced, however only 34 witnesses out of 79 witnesses cited by the prosecution have so far been examined.

4. Learned counsel further submits that apart from the primary witnesses, particularly PW-5 who is stated to be an eye witness, witnesses of the forensic and serologists department have also been examined and discharged. She further submits that at this pace, the conclusion of the recording of prosecution evidence will take considerably long time. On that basis, she submits that the applicant cannot be incarcerated without any reasonable justification and since all the vulnerable witnesses have already been examined by the prosecution, there probably cannot be any plausible reason of the applicant either tampering with the evidence or influencing the witnesses in any manner whatsoever.

5. Ms. Bhandari, learned counsel submitted that though the incident is stated to have occurred on 13.04.2015, the applicant was arrested only on 01.06.2017. In other words, she submits that delay in arrest of the applicant has to be read in favour of the innocence of the applicant.

6. Learned counsel laid great emphasis on the evidence of the PW-5 namely Gagan Dudhoria who is stated to be eye witness, to submit that the said witness was unable to withstand the cross examination and could not