Prima facie evidence at the bail stage can indicate the involvement of the accused in the crime, leading to the rejection of bail applications.

JUDGMENT :

Alok Kumar Verma, J.

Both the Bail Applications have been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with the Case Crime No.486 of 2019, registered at Police Station Haldwani, District Nainital. Gaurav Gupta - applicant is in judicial custody for the offence under Section 302 and Section 394 of the Indian Penal Code (in short, “IPC”) and Section 30 of the Arms Act, 1959. Applicant – Saurabh Gupta is in judicial custody for the offence punishable under Sections 302 and 394 IPC.

2. These two Bail Applications have arisen from one case crime number, therefore, both the Bail Applications are being disposed of by this common order. Record of First Bail Application No.1139 of 2020 will be leading file.

3. The brief facts which are required to be stated are that Smt. Vinita Pandey, the informant, lodged the First Information Report saying that today, i.e. on 15.12.2019 at around 12 o’clock, her husband Bhupendra Pandey had gone to Mangal Parao with Dinesh Sagar in his scooty. Around 1:00 p.m., her nephew Neeraj Pandey informed her that his uncle Bhupendra Pandey was shot dead by Saurabh Gupta and Gaurabh Gupta (applicants – accused persons herein) at Mangal Parao, Sindhi Chauk. Both of them were having enmity with her husband regarding the matter of loan. The First Information Report was registered at 20.40 hrs. on 15.12.2019.

4. Heard learned counsel for the parties.

5. Mr. Arvind Vashistha, learned Senior Advocate, arguing counsel for both the applicants, has contended that Neeraj Pandey, who gave the information to the informant is a hearsay witness. According to the statement of Neeraj Pandey, recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), he had received the information regarding the incident on his telephone from his neighbour Rajendra Singh Bisht. Rajendra Singh Bisht is also not an eye witness. According to the prosecution, Dinesh Sagar is an eye witness. Dinesh Sagar had stated in his statement under Section 161 of the Code that he and the deceased were coming back to the shop from Bhotia Parao, at that time the present applicants, who were standing outside their shop, stopped them and started marpeet with him, and, when the deceased tried to intervene, he was also beaten. The deceased picked a brick from the road. The present applicants pushed him down, took his revolver and fired him (deceased).

6. Mr. Arvind Vashistha, learned Senior Advocate, argued that there are material contradictions in the statements of the alleged eye witnesses. Prosecution has relied upon a CCTV footage, which is not conclusive. The alleged recovered revolver from the possession of Saurabh Gupta belonged to the deceased and the licensed revolver, allegedly recovered on 18.12.2019 from the house of Gaurav Gupta, was planted. The First Information Report is delayed by seven hours.

7. On the other hand, Mr. G.S. Sandhu, learned Government Advocate and Mr. D.K. Sharma, learned Senior Advocate appearing for the victim, have vehemently opposed the Bail Applications and submitted that the trial of the present case is pending before the District and Sessions Judge, Nainital and in the said Sessions Trial, twelve prosecution witnesses have been examined so far and all of them have fully supported the prosecution case.

8. Mr. D.K. Sharma, learned Senior Advocate, has contended that the witness Dinesh Sagar (PW3), an eye witness, who was sitting on the scooty of the deceased at the time of the incident, and witness Sandeep Kukshal (PW4), an eye witness, whose statement under Section 164 of the Code was also recorded, have supported the case of prosecution. He further submitted that during the investigation, evidence was found that the applicants – accused persons had committed the murder of the husband of the informant by firearms near Sindhi Chawk as the applicants having enmity with the deceased.

9. Mr. D.K. Sharma, learned Senior Advocate, has conten