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2009 DIGILAW 464 (JK)

Alam Shah v. State

2009-09-29

SUNIL HALI

body2009
1. One Gafoor Ahmed is stated to have been killed by the petitioner-Alam Shah who is arrayed as an accused Under Section 302/120-B RPC. The other accused are facing trial Under Section 302/364/34 RPC. The prosecution story reveals that on 2.5.2007 one Mohd Mahroof informed the police that the deceased was abducted by some unidentified persons in the intervening night of 1st and 2nd of May 2007. The information further reveals that the dead body of deceased was lying at Dhar Kass (Gholad). On receipt of this information FIR No.58/2007 for commission of offence under Section 364/302/34 RPC was registered by the police concerned. 2. The motive for committing the crime by the petitioner and other accused was to grab the property accumulated by the deceased, who had received compensation from Saudi Arabia on account of death of his father. It is stated that the petitioner had taken loan from the mother of deceased, but failed to repay the same. On failure to pay the amount to the mother of the deceased, a conspiracy is stated to have been engineered by the petitioner and other accused persons to eliminate the deceased in order to grab the said property. The investigation further reveals that the deceased had developed some relation with a girl who belongs to Maneyal a Rajput community, which was resented by the family members of the said girl. The deceased was arrested by the police for having abducted the said girl. This situation was found appropriate by the accused persons, who hatched a conspiracy to kill the deceased in order to have the finger of complicity raised against the relatives of the said girl who had rejected the said marriage. 3. On the initiation of the trial, the prosecution submitted a list of 30 witnesses, out of which 18 witnesses have been examined, leaving 12 to be examined. Out of the witnesses, 15 and 16 are yet to be examined and they are stated to be out of country in Saudi Arabia. In terms of the report under Section 173 Cr. P.C, the statement of two witnesses, namely, Sh. Ajaz Hussain and Sh. Hassan Abas were taken for recording their statement under section 164-A Cr.P.C. It is revealed from the report under Section 173 Cr.P.C that the Judicial Magistrate refused to examine the two witnesses under section 164-A Cr. P.C, as such, their statement could not be recorded. P.C, the statement of two witnesses, namely, Sh. Ajaz Hussain and Sh. Hassan Abas were taken for recording their statement under section 164-A Cr.P.C. It is revealed from the report under Section 173 Cr.P.C that the Judicial Magistrate refused to examine the two witnesses under section 164-A Cr. P.C, as such, their statement could not be recorded. The aforementioned witnesses have contradicted the version of the prosecution in their statement u/s 161 of Cr. PC in the trial. 4. The allegation against the accused persons is that the deceased was abducted by them and taken into a cow-shed where he was hit with a "Rumbi" and was also beaten as a result of which he is stated to have died. His deadbody was taken to a place at Dhar Kass (Gholed). On account of being hit on the head, the blood had fallen on the ground. He was thereafter taken out from there in the dead of night to the nallah. A bottle of poisonous substance in shape of Nuvan , steel glass and a knife along with rope was kept on the side of dead body so that it appears that deceased had committed suicide. Accused Abrar and Asif are alleged to have made a disclosure statement and on their identification "rumbi" and "rope" were recovered from the cattle shed. 5. In the process of investigation sample of the mud was sent to FSL for its chemical examination. The post postmortem of the dead body was also conducted. The report of the post postmortem states that there was no poisonous substance found in the body and the death could be caused by the injury sustained by the deceased. The report of the chemical examination is also stated to have been received. A certified copy of which has been placed by the petitioner along with file. According to the report of chemical examiner, the exhibit No.50/2007 contains sample of clay with stain of blood of deceased. The report states that no blood was detected from this exhibit. The opinion according to the learned counsel for petitioner clearly indicate that no blood was found on the clay discounting the prosecution version. 6. During the course of investigation it further reveals that accused had sustained three injuries on his head, as are revealed from the report of doctor. The report states that no blood was detected from this exhibit. The opinion according to the learned counsel for petitioner clearly indicate that no blood was found on the clay discounting the prosecution version. 6. During the course of investigation it further reveals that accused had sustained three injuries on his head, as are revealed from the report of doctor. According to the report of doctor the following internal injuries were found on the head of the deceased. 1. An abrasion measuring 4"x5" reddish brown in colour over left parieto occipitel area. On dissection of the said area s/c tissue shows congestion which was difficult to remove on washing. No underlying boney injury was detected. There was partial hair loss over the above mentioned area. 2. An abrasion measuring 3"x2" found on the right parieto occipital area with reddish discolouration and partial hair loss. On dissection under lying s/c tissue shows congestion which is difficult to remove on washing. No under lying boney injury are detected. 3. An abrasion measuring 5"x3" over right upper arm on outer side shows echumosis blood found around the wound. Findings are suggestive of wound being antemortem in nature. 4. A similar injury with some features described at S. No. 3 above observed on left arm outer aspect also. 7. Report of the Doctor further reveals that on opening the skull it was found that a clot measuring about 3cm x 4cm( 100ml approximately) over the surface of duramater on left parietal area corresponding to the external injury mentioned under the heading external and internal injuries were found on the skull of deceased. 8. The finding of the Doctor says that the deceased has died as a result of head injury which caused Cardio Pulmonary Arrest. Report of the doctor examined by the prosecution clearly indicate that there was abrasion on the head but no wound was found on the head which could result in the bleeding. Report further reveals that there was no fresh blood oozing/ clotted blood around the wound. The investigating officer in his statement has stated that clay socked with blood was seized and sent to the FSL for chemical examination. He has, however, denied that any trace of blood was found from the place of occurrence to the house of Alam Shah as stated by the mother of deceased. The investigating officer in his statement has stated that clay socked with blood was seized and sent to the FSL for chemical examination. He has, however, denied that any trace of blood was found from the place of occurrence to the house of Alam Shah as stated by the mother of deceased. The witnesses No. 13 and 14 turned hostile, did not support the prosecution story. 9. It is under these circumstances the petitioner has filed bail application before the learned Sessions Judge, Poonch on the account that there was no circumstances linking the accused with the commission of crime. The Trial Court after hearing the parties has rejected the bail application on the ground that it was not appropriate at this stage to discuss the merit of the evidence produced by the prosecution. He has further stated that witnesses to the disclosure statement and the statement of expert are yet to be examined. 10. I have heard learned counsel for the parties. According to the learned counsel for the petitioner following three circumstances are stated to be against the accused. (a) The nature of the injury on the body of the deceased was caused by "Rumbi" resulting in injuries leading to oozing of blood which was recovered from the place of occurrence. (b) Alleged weapon used for inflicting the same could cause death. Trail of blood was found from the place where the occurrence had taken place. (c) The blood of the deceased was found on the ground from the cow-shed of the petitioner. 11. He states that the nature of the injury which has caused the death is not in dispute. The alleged weapon of offence used was sufficient to cause death of deceased as has been affirmed by the medical evidence. However, in order to connect the accused with the crime, the nature of injury found on the head of the deceased would reveal that there was no wound from which the blood could ooze. The other factors relevant for the purpose of present controversy is as to whether any blood was found in the clay which is supposed to have been collected by the Investigating Officer from place of occurrence and sent to FSL for the same. The report of FSL clearly reveals that the sample of clay which was sent for examination did not contain any blood. The report of FSL clearly reveals that the sample of clay which was sent for examination did not contain any blood. It is also found from the statement of Investigating Officer that there was no trail of blood found from the place of occurrence to the place where the dead body was found. According to the petitioner this is sufficient to indicate that the injuries caused on the body of the deceased which resulted death of deceased was on account of internal injury as no blood is stated to have oozed out of the said injury. 12. The prosecution story that on account of being hit by the accused, the blood oozed from the injury sustained by the deceased and he fell on the ground is not substantiated by the FSL report. 13. The case in hand is based only on circumstantial evidence and in such a case not only culpability or mens rea of the accused should be prima facie established, the court has also to consider the question as to whether the circumstantial evidence is such in which the link in the chain is complete. 14. It is not in dispute that the petitioner is being tried under Section 302/120-B RPC, whereas the other accused persons have been tried under Section 302/364/120-B RPC. There is no charge of kidnapping against the petitioner which obliterated the possibility of the deceased having been last seen with the petitioner. The circumstantial evidence which according to the prosecution connecting the accused with the crime is that a weapon of offence `Rumbi" was recovered from the cow-shed belonging to the petitioner which was weapon of offence used to commit crime. The presence of the blood on the ground in the cow-shed of the accused indicates that the injury on the body of the deceased resulted in gaping wound and oozing out of the blood. As indicated herein above, this circumstance has been disproved by the report of FSL which clearly rules out the presence of blood in the sample of clay collected. 15. As indicated herein above, this circumstance has been disproved by the report of FSL which clearly rules out the presence of blood in the sample of clay collected. 15. The considerations which normally weigh with the court in the matter of granting bail in non bailable offences basically relate to the nature and seriousness of the offence; the character of the evidence; the circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of the witnesses being tampered with the larger interest of the public or the State and the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. 16. Applying these principles in the present case, it emerges that the chain of events which would lead to the conclusion that the accused has committed offence is not complete. The reports of the experts such as Doctors and FSL clearly reveal that there was only abrasion on the head of the deceased and no wound from where the blood could ooze out. The FSL report dis-counts the presence of blood in the sample of clay collected from the place of occurrence. The Investigating Officer has also denied the presence of trail of blood from the cow-shed to the place where the body was recovered. 17. The discretion to grant bail given to this court under Section 498 of the Cr.P.C, is not fettered in terms by the restrictions contained in Section 497 but no principle, these govern the exercise of the discretion by it under Section 498. If there are reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life, this Court or the court of Session will not grant bail to such a person. Whether there are reasonable grounds to believe that a person is guilty of an offence depends upon the evidence which is used against him. Whether there are reasonable grounds to believe that a person is guilty of an offence depends upon the evidence which is used against him. In order to come to the conclusion that a person is guilty, the court must consider the nature and the character of the evidence and, in case, on consideration of such evidence, the court prima-facie comes to the conclusion that the evidence against the person is not such that he has committed the offence, then, in the normal course, the said person is entitled to bail. 18. Trial court while dealing with this question has refused to grant bail to the petitioner on the ground that the order of bail would require commenting upon the merits of the evidence which might prejudice the trial. I do not feel inclined to agree with this proposition. Prima facie when the court is satisfied that there are reasonable grounds to believe that character of evidence collected does not indicate that accused has committed the offence, bail should normally be granted. 19. Even otherwise also one of the fact which can also be considered in the matter of granting bail to the petitioner is that he has already crossed the age of 67 years. 20. For the reasons stated above, the bail application is allowed. The petitioner is directed to be released on bail for a period of four months, subject to furnishing of bail bond to the tune of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the Pr. District & Sessions Judge, Poonch. The direction to release the petitioner on bail for a period of four months is given with an intention to provide an opportunity to the prosecution to produce the remaining witnesses which might be examined by them in support of their case. It is, however, directed that the applicant/petitioner will not leave the territorial jurisdiction of Principal Sessions Judge, Poonch without his prior permission and will not tamper the evidence or influence the witnesses in any manner. In case, evidence sufficient to implicate the petitioner is not produced during the period of four months, the trial court will consider the grant of extension in bail to the petitioner till the conclusion of the trial after the expiry of four months. 21. In case, evidence sufficient to implicate the petitioner is not produced during the period of four months, the trial court will consider the grant of extension in bail to the petitioner till the conclusion of the trial after the expiry of four months. 21. Any observation made in this order, however, will not influence the course of the trial and court shall proceed in the matter purely upon merits of the case. Bail application is disposed of.