IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1182 of 2011 Chankaya @ Guddu, S/O-Sri Vijay Krishna Versus The State Of Bihar For the Petitioner :- Mr. Shakil Ahmad Khan Sr. Advocate Mr. Upendra Kumar Sr. Advocate For the Informant :-Mr. Krishna Pd. Singh Sr. Advocate For the State :- Mr. S.C. Misra APP ----------- 08 01.07.2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the State assisted by learned counsel for the informant. Initially, the case was instituted under section 365 of the Indian Penal code against unknown but subsequently, Sections 364, 302, 201, 120B of the Indian Penal Code and 27 of the Arms Act were added and the name of this petitioner surfaced in the statements of proposed prosecution witnesses who were examined in course of investigation. It would appear from the impugned order as well as submissions of the parties that the entire prosecution case hinges upon circumstantial evidence and admittedly, the alleged occurrence took place in a flat of Jhula Niketan Apartment and at the time of alleged occurrence deceased, co-accused Vijay Krishna, Umesh Singh and Gagan Kumar as well as this petitioner, allegedly, present in the above stated flat. In course of investigation, the statements of two witnesses, namely, Chunkeshwar Prasad and Dharmendra Kumar 2 @ Tuntun were recorded. The aforesaid two witnesses were working as guard in the aforesaid Jhula Apartment. The aforesaid witnesses stated that on the alleged date of occurrence deceased along with co-accused Vijay Krishna and Umesh Singh went in the flat of petitioner and after sometime they heard the sound of firing and, thereafter, aforesaid co-accused Vijay Krishna as well as Umesh Singh came down from the aforesaid flat and left the place. Furthermore, the aforesaid witnesses stated that petitioner also came out of his flat and parked his vehicle near the stair of the aforesaid apartment and subsequently, he as well as his servant with the help of aforesaid witnesses got loaded a heavy trunk in the aforesaid vehicle and left the apartment and again in late night he returned to the aforesaid apartment. The statements of aforesaid witnesses were recorded under Section 164 of the Cr.P.C. in which they have not stated the above stated facts rather witness Chunkeshwar Prasad has stated that on the alleged date of occurrence co-accused Vijay Krishna along with his bodyguard had come to the above stated apartment and similarly, witness Dharmendra Kumar @ Tuntun has stated that on the alleged date of occurrence he saw that co- accused Vijay Krishna and his bodyguard were coming down from the flat of the petitioner and after that they left by their Sumo vehicle. Learned Senior counsel Mr. Shakil Ahmad Khan submitted that there is nothing in the entire case diary to show this fact that on the alleged dated of occurrence petitioner was 3 present in his flat. It is also contended by him that no doubt, witnesses Chunkeshwar Prasad and Dharmendra Kumar @ Tuntun vide Para Nos. 79 and 80 of the case diary have stated about the presence of the petitioner in his flat at the time of the alleged occurrence but admittedly, they have not even whispered in respect of the petitioner in their statements recorded under Section 164 of the Cr.P.C. It is contended by him that since the statement under Section 164 of the Cr.P.C. has been recorded by a Judicial Magistrate, the weightage should be given to the above stated statements. It is also contended by him that having more or less similar allegations, several co-accused persons have already been granted privilege of bail by another Bench of this Court. On the other hand learned Additional Public Prosecutor assisted by learned counsel for the informant vehemently, opposed the prayer submitting that in course of investigation blood stained cloth and mark of firing were found by the I.O. and the aforesaid blood stained cloth was recovered from the flat of the petitioner. It is also contended by him that not only petitioner but also several other co-accused persons have confessed their guilt and the recovery of blood stained cloth has been made on the basis of confessional statement of co-accused Gagan Kumar who is none else than the servant of the petitioner. It is further contended by him that the dead body of deceased was subsequently, recovered from Ganga river and dead body was identified by family members of deceased by the cloth of the deceased. It is also contended by him that the prayer for bail of 4 co-accused, namely, Umesh Prasad Singh, against whom there is allegation that he handed over a pistol to the petitioner prior to the alleged occurrence and furthermore, he was also present in the aforesaid flat at the time of the alleged occurrence, has already been rejected by another bench of this Court. Having heard the rival contentions of both the parties and having gone through the records along with the case diary, I find that there is no eye-witness of the alleged occurrence and, allegedly, the alleged occurrence took place in the presence of the co-accused persons, who are not ready to depose in favour of the prosecution. So, admittedly, the instant case is based on circumstantial evidence. The recovery of blood stained cloth and sign of firing on the wall of flat of the petitioner prima facie establishes this fact that the deceased was murdered in the flat of the petitioner. So far as presence of the petitioner in his flat at the relevant time is concerned, one witness, namely, Popindra Prabhat whose statement has been recorded under Section 164 of the Cr.P.C., has very clearly stated that petitioner resides in the flat in question. Therefore, burden shifts upon the petitioner to prove this fact that on the alleged date of occurrence he was not present in his flat and, in my view, the aforesaid plea is amount to plea of alibi which will be considered at the time of the trial. Accordingly, the prayer for bail of the petitioner in connection with Sessions Trial No. 1007 of 2010 arising out of S.K. Puri P.S. Case No. 110 of 2009 pending in the court of Additional District & Sessions Judge-XI, Patna stands rejected. 5 Since another bench of this court has already directed the trial court to expedite the trial of the accused, the trial court should proceed with the trial in the light of direction given by this court vide order dated 10.05.2010 passed in Cr. Misc. No. 2479 of 2010. Shahzad ( Hemant Kumar Srivastava, J.)