IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

THE HON’BLE SRI JUSTICE ASHISH NAITHANI

SECOND BAIL APPLICATION NO. 314 of 2024

Aditya Tomar …Applicant

Versus

State of Uttarakhand …Respondent

Counsel for the Applicant : Mr. Abhishek Verma,

learned counsel.

Counsel for the State : Mr. Bhaskar Chandra

Joshi, learned A.G.A.

Counsel for the Complainant: Mr. Rajendra Singh

Azad, learned counsel.

Hon’ble Ashish Naithani, J.

The present bail application has been filed by the

Applicant, Aditya Tomar, under Section 439 of the Code of Criminal Procedure, 1973 (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023), seeking release on bail in connection with Sessions Trial No. 117 of 2022, arising out of Case Crime No. 109 of 2022, registered at Police Station Raipur, District Dehradun, for the offences punishable under Section 302

of the Indian Penal Code and Section 25 of the Arms Act.

2. The FIR was lodged on 03.03.2022 at 20:31 hours by one Rakesh Bansal. It was alleged that at about 5:30 p.m. on the same day, his younger daughter sustained firearm injuries. Upon

inquiry, he came to know that the Applicant had fired upon her with a country-made pistol. The injured later succumbed to the injuries.

3. During investigation, the police recorded statements of witnesses including one Divya and one Sakshi Ayyar (shopkeeper), who allegedly stated that the Applicant fled after firing upon the deceased, leaving behind his motorcycle (Super Splendor bearing registration No. UK07BN1359), a country- made pistol of 12 bore with empty cartridges, and a mobile phone, all of which were seized from the spot.

4. The Applicant was arrested on 04.03.2022. On completion of the investigation, a charge sheet was filed on 27.05.2022, arraying the Applicant as accused for the aforesaid offences. The prosecution has cited 40 witnesses, out of whom only 8 have been examined so far.

5. It is the second bail application moved on behalf of the Applicant. The first bail application was dismissed as withdrawn by order dated 12.12.2023. The Applicant has remained in custody since 04.03.2022.

6. Learned Counsel for the Applicant, Shri Abhishek Verma, submits that the Applicant has been falsely implicated in the present case. It is contended that the prosecution case rests entirely on circumstantial evidence, and there is no direct eyewitness account linking the Applicant with the commission of the alleged offence. According to learned Counsel, the FIR was lodged on mere suspicion, and subsequent investigation has failed to yield any unimpeachable evidence establishing the involvement of the Applicant.

7. Learned Counsel for the Applicant further argues that although a country-made pistol and motorcycle were shown to have been recovered from the spot, no fingerprint or other forensic evidence of the Applicant was found on the seized articles. The ballistic report does not conclusively establish that the Applicant fired the fatal shot. It is stressed that in the absence of such conclusive forensic linkage, mere recovery of articles from the place of occurrence cannot by itself justify prolonged detention of the Applicant.

8. With respect to the CCTV footage cited by the State, learned Counsel for the Applicant submits that it suffers from a statutory infirmity since no certificate under Section 65B of the Indian Evidence Act has been furnished, rendering the footage inadmissible at this stage. In support of this submission, reliance is placed on the settled principle that electronic evidence without compliance with Section 65B is of no evidentiary value.

9. It is also argued that the prosecution has cited as many as 40 witnesses, but in the span of over three years, only 8 witnesses have been examined, which shows the tardy pace of the trial. The Applicant has remained in judicial custody since 04.03.2022, and there is no likelihood of the conclusion of the trial in the near future. It is urged that the Applicant cannot be made to suffer indefinite incarceration, as the right to a spe