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2011 DIGILAW 320 (JK)

Shiv Kumar v. State & Ors.

2011-06-10

MOHAMMAD YAQOOB MIR

body2011
1. Petitioner having failed to obtain concession of bail from the trial Court has moved the instant motion. 2. On 18th of September' 2009, one Jyoti Devi (deceased) has committed suicide. Five years prior to the occurrence, she was married to the petitioner. It is alleged that Mst. Vidya Devi, accused no. 2- mother-in-law and accused no.1, husband of the deceased, for want of dowry were taunting the deceased. A female baby was born from the wedlock of the deceased and accused no.1, ten months after the marriage but the child died within fourteen/fifteen days after birth. Thereafter for four long years the deceased was being provided medical treatment but she could not give birth to a child. Both accused i.e., husband and mother-in-law of the deceased lost hopes, so started subjecting the deceased to cruelty and it is cruelty meted out to her which made her to end her life by committing suicide. 3. For commission of the offences punishable under Section(s) 306 & 498-A of Ranbir Penal Code (for short R.P.C), case was registered as F.I.R No. 198 of 2009 with Police Station, Kishtwar. Investigation of the case culminated in filing the charge-sheet (Challan) and finally committed to the Court of Sessions Judge, Kishtwar for trial. The accused have been put to trial as they had pleaded not guilty to the charges framed against them. Both the accused are stated to have been arrested on 24th of September' 2009 subsequently accused no.2 i.e., mother-in-law of the deceased has been admitted to bail, whereas bail petition of the petitioner has been rejected by the trial Court vide detailed order dated 8th of November' 2010. While rejecting the petition for grant of bail, learned trial court has observed that only five witnesses have been examined; whereas PWs 4 & 5 namely Pushpa Devi and Pancham Singh, mother and brother respectively of the deceased were not examined. The said witness are star witnesses on whose testimony the whole prosecution case hinges and has also observed that in case, at this stage, bail is granted the accused may threaten/intimidate the prosecution witnesses. Finally, has concluded that the stage is not ripe for grant of bail to the accused no.1 Shiv Kumar. 4. Learned counsel appearing for the petitioner states that by now statements of eleven witnesses have been recorded, which include the statement of Pushpa Devi and Pancham Singh. Finally, has concluded that the stage is not ripe for grant of bail to the accused no.1 Shiv Kumar. 4. Learned counsel appearing for the petitioner states that by now statements of eleven witnesses have been recorded, which include the statement of Pushpa Devi and Pancham Singh. The said two witnesses i.e., Pusha Devi (mother) and Pancham Singh (brother) of the deceased in their deposition have mainly stressed that it is the mother-in-law of the deceased who used to tease the deceased. 5. Almost all the witnesses shown to be witnesses to the occurrence have been examined, so there is no question of extending any intimidation or threat to the witnesses. 6. The grant or otherwise of the concession of bail is a matter of discretion and the said discretion is not unfettered. Exercise thereof is governed by the judicial principles. Every case in the backdrop of its own facts and features has to be considered. By grant or otherwise of the bail neither prosecution case can be said to have been proved nor dis-proved. Grant or otherwise of the bail is an interim measure which prevails during the trial. The curtailment of liberty is permissible when circumstances so warrant. Curtailment of liberty during enquiry/investigation/trial has an object of ensuring proper enquiry/investigation/trial. In the process to keep the accused away so as to deter him from causing any type of disturbance in the enquiry/investigation/trial. Furthermore, same is the requirement when involvement of an offender is in connection with heinous offence and in case of commission of heinous offence bent of mind can always be dangerous in order to ward of such situation, curtailment of liberty is the only option. 7. In the instant case, mitigating factors are available only relatable to the grant of bail i.e., i) admittedly, five years prior to the date of occurrence, petitioner and deceased were married; (ii) after eleven months of marriage one female child was born; (iii) five years association of the petitioner and the deceased, whether smooth or not; (iv) the position of the petitioner having been in custody for more than one and a half year; (v) the progress of the trial i.e., eleven witnesses, almost all the witnesses to occurrence have been examined; (vi) the mother-in-law-accused no.2 has already been admitted to bail. 8. In the backdrop of aforestated circumstances, whether further incarceration of the petitioner is permissible. 8. In the backdrop of aforestated circumstances, whether further incarceration of the petitioner is permissible. Incarceration shall not be such, which may appear to be serving of sentence before conviction. The settled principle of Criminal Jurisprudence is that unless guilt is brought home, accused is presumed to be innocent. 9. It is quite heartening to note that the society has not yet undergone change. The humanity is under challenge. The hard fact well conceptualized that the women are still subjected to hardships irrespective of the realization that it is the woman who is the mother, daughter, daughter-in-law, sister-in-law, sister, mother-in-law and it is the woman in whose lap children groom, be it male or female. When woman in any form is realized in the aforesaid background and its importance, then no society can afford to be in any manner hostile and instead will show complete respect, irrespective of circumstances such as procreation of children, bringing dower and other allied circumstances. If a woman is driven to suicide, an offence against the society, and a moral and social degradation, then the person responsible who are guilty have to be dealt with iron hands, lest conscience of society may get shocked. 10. The stage i.e., when on proof of such charges, conviction is recorded and then sentence has to be exemplary. It is to be borne in mind that until conclusion of the trial and until proving commission of offence, accused cannot be subjected to a situation which in effect would amount to conviction and sentence before actually recording conviction/sentence. 11. Apex Court in the judgment captioned as State of West Bengal Vs Orilal Jaiswal & another reported in (1994) 1 SCC-73, has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether cruelty meted out to the victim had in fact induced her to end her life by committing suicide. 12. Learned counsel for the petitioner while relying on the judgment rendered by the Co-ordinate Bench of this Court in case of Captain Chatnaya SB Vs. State of J&K & another, Bail Application No. 90 of 2008 decided on 4th of December' 2008 and Bail Application No. 16 of 2010 titled Jagdish Kumar & others Vs. 12. Learned counsel for the petitioner while relying on the judgment rendered by the Co-ordinate Bench of this Court in case of Captain Chatnaya SB Vs. State of J&K & another, Bail Application No. 90 of 2008 decided on 4th of December' 2008 and Bail Application No. 16 of 2010 titled Jagdish Kumar & others Vs. State & others and also while relying upon a judgment rendered by the Hon'ble Apex Court in case titled Gangula Mohan Reddy Vs. State of Andhra Pradesh, reported in Supreme To-Day Part-197-2009 (8) prayed for exercise of discretion in favour of the accused; whereas on the other hand learned counsel for the respondents prayed that no doubt after the order of rejection of bail by the trial Court there is change in circumstances, i.e., statements of eleven witnesses have been recorded, the matter may be left open for the trial Court for consideration so as to decide the grant or otherwise of bail in favour of the petitioner. 13. While considering the entire gamut of the case, in the backdrop of the evidence as has been led and the stage of the trial and the position of grant of bail to the co-accused i.e., mother of the accused and the position of the accused having been in custody for the last more than one and a half year, extenuating circumstances are forthcoming so as to persuade the Court to exercise the discretion in favour of the accused. 14. In the final analysis, the petitioner deserves to be enlarged on bail, subject to the following conditions; i) That the petitioner will ensure his presence on each and every date of hearing before the trial Court, except for just cause; ii) petitioner will not in any manner cause any kind of interference in the smooth trial of the case; iii) petitioner shall furnish surety bonds to the tune of Rs. 30,000/- to the satisfaction of the trial Court and personal bond of the like amount to the satisfaction of the concerned jail authorities; iv) petitioner will not leave the territorial limits of district Kishtwar without prior permission of the trial Court. 15. It shall be open for the trial Court to recall the concession of bail as granted, if at any point of time circumstances so warrant. 16. Bail application is accordingly, disposed of.