Kamru v. State of Rajasthan

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Arvind Kumar Gupta, Shri Amir Aziz & Shri Ali Mohd.Khan for the petitioners. Shri Mahendra Meena, Public Prosecutor for State. Shri Manish Gupta for the complainant. ****** These three applications for grant of bail for the second time on behalf of accused petitioners Kamru, Akbar, Jumma @ Jamshed @ Jamaluddin and Basir and third time on behalf of accused petitioner Sharif Khan have been filed with the prayer that pending trial, accused petitioners may be released on bail. Learned counsel for the petitioners have argued that this court while dismissing the first bail applications of first four accused petitioners Kamru, Akbar, Jumma @ Jamshed @ Jamaluddin and Basir, directed the trial court to record the statements of eye-witnesses Asudin @ Teeta, Kailash and Jahul Khan with liberty to the petitioners to again apply for bail. The statements of those witnesses were also recorded earlier in the trial of other co-accused. After the arrest of petitioners including accused petitioner Sharif Khan, charge was again framed SB Crlmb No.11350/12. SB Crlmb No.11351/12. SB Crlmb No.11352/12. 2 against them and they were made to join the trial and therefore necessity for recording their statements again arose. Learned counsel submitted that as per the original version, what was alleged by complainant Jameel in the FIR that his aunt (father's sister Hurra) had gone to the residence of accused on being called by co-accused Shamshu and Ramjan both sons of Bane Singh on telephone and his father Mamur aged fifty years had also gone to their place. He received an information on telephone on 28/4/2011 that at the residence of Shamshu, his father Mamur and aunt Hurra have been murdered by co-accused Shamshu, Ramjan and other co-accused. Learned counsel submitted that abovenamed three eye-witnesses alleged that two deceased Mamur and Hurra were subjected to beating and were tied with a rope to a tree in the house of Ramjan and then burnt them alive. Since, those three witnesses have turned hostile and not supported prosecution case, there is no legal evidence to support allegation against them and hence, there is no justification for keeping the petitioners behind the bar on moral grounds alone especially when they are in jail for almost a year or so. Learned Public Prosecutor and learned counsel for the complainant have opposed the bail applications and have argued that first and second bail applications of accused-petitioner Sharif Khan were considered by this court and despite those three witnesses having turned hostile albeit in the trial of other accused, this court dismissed the bail application of accused petitioner Sharif Khan vide order dated 26/3/2012 and thereafter again when petitioner Sharif Khan applied for second bail, same was also dismissed vide order dated 18/9/2012 observing that court was not inclined to take a different view than was expressed while rejecting first bail application on 26/3/2012. There is therefore no reason for the court to SB Crlmb No.11350/12. SB Crlmb No.11351/12. SB Crlmb No.11352/12. 3 again consider the prayer of the accused for their release on bail just because some statements have been made by those three eye-witnesses. It is contended that two deceased Mamur and Hurra were murdered in most diabolic and brutal manner. They were tied to a tree and burnt alive. Three eye-witnesses i.e. PW2 Asudi, PW4 Kailash and PW5 Jameel have been won over by the accused party because they are residents of the same village. But otherwise, complainant PW1 Jameel Khan, who first of all received information from the villagers in his statement has repeated the allegation that present accused petitioners and other accused tied the deceased to a tree and burnt them alive. In this connection, they also referred to the statement of PW3 Ayub to show that on reaching the village, they were informed that it is Samsu, Ramjan, Akbar, Basira, Jamma, Kamru and Sharif, who had killed the deceased. It is therefore prayed that bail applications of the accused petitioners be dismissed. Upon hearing learned counsel for the petitioners, learned Public Prosecutor for the State, learned counsel for the complainant and perusing the material available on record, I find that despite three eye-witnesses PW2 Asudi, PW4 Kailash and PW5 Jameel turning hostile, this court considered and rejected the first bail application of Sharif Khan vide order dated 26/3/2012 and his second bail application was dismissed vide order dated 18/9/2012 observing that court was not inclined to take a different view than was expressed while rejecting first bail application on 26/3/2012. Although, it is true that those witnesses when examined in the trial of the present case have again turned hostile, but that does not change the circumstances of the case because they turned hostile even when their statements were recorded in the trial of other accused. Contention that there is no legal evidence SB Crlmb No.11350/12. SB Crlmb No.11351/12. SB Crlmb No.11352/12. 4 against petitioners, is premature as this issue will have to be examined by the trial court if and when final arguments are made. Manner in which two deceased Mamur and Hurra were murdered, shocks the conscience of the court, therefore this court is not inclined to enlarge the petitioners on bail. All the three bail applications under Section 439 Cr.P.C. are therefore dismissed. Trial court however is directed to conclude the trial at the earliest and enforce the attendance of the witnesses on the dates next fixed before it. It shall be the duty of the concerned Superintendent of Police to ensure production of the witnesses on the appointed dates. A copy of this order be sent to the concerned Superintendent of Police for compliance. (MOHAMMAD RAFIQ), J. Anil/35-37 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW