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2018 DIGILAW 68 (JK)

Tirath Ram v. State

2018-02-06

BADAR DURREZ AHMED, DHIRAJ SINGH THAKUR

body2018
JUDGMENT : BADAR DURREZ AHMED, J. MP No.02/2017 1. This is an application seeking suspension of sentences and release of the convicts on bail. The learned counsel for the appellants submitted that one of the appellants (Bali Ram) is suffering from medical complications, particularly with regard to disc prolapse between L4-L5 and therefore, is in serious discomfort. The medical report obtained from the Jail dated 19.01.2018 also indicates that the appellant Bali Ram is suffering from such medical complications. However, he is being provided medicines and treatment and is also being taken to hospital from time to time. 2. Insofar as the other appellant Tirath Ram is concerned, the learned counsel for the appellants submitted that, on facts, he has an excellent case and in fact, both the appellants are liable to be given the benefit of doubt when the appeal is heard and there is a great possibility of the appeal being allowed in their favour. The appellant Tirath Ram was arrested on 15th October, 1996 when he was discharged from the hospital and had been in custody during the trial period up to 23.03.1999 when he was released on bail till 19.04.2017 when the order of conviction was pronounced and since then, he has been in custody. In other words, the appellant Tirath Ram has been in custody for approximately three years and three months. On the other hand, the appellant Bali Ram, who had initially absconded was ultimately arrested on 12.08.2006 and remained in custody till 15.10.2011, when he was granted bail on medical grounds as also on the ground that all the evidence had been recorded. He was once again taken into custody, as in the case of Tirath Ram, on 19.04.2017 when the conviction order was pronounced and has remained in custody since then. In other words, the appellant Bali Ram has been in custody during the trial period for about five years, three months and approximately ten months during the stage of appeal. 3. The learned counsel for the appellants submitted that the deceased Shiv Kumar, according to the opinion of the Doctor, who conducted the post mortem examination, died not due to the firearm injury, but due to the other injuries sustained by him on the head and other parts of the body. 3. The learned counsel for the appellants submitted that the deceased Shiv Kumar, according to the opinion of the Doctor, who conducted the post mortem examination, died not due to the firearm injury, but due to the other injuries sustained by him on the head and other parts of the body. He submitted that the appellant Tirath Ram is supposed to have been armed with a pistol which he used for firing four shots as per the prosecution, two of which, hit the deceased Shiv Kumar and his father Bua Ditta. Both the injuries were on the right thighs of the said persons. He further submitted that the appellant Tirath Ram also received injuries which have not been explained by the prosecution, particularly the serious injury on his neck for which he was hospitalized from 04.10.1996 (i.e., the date of occurrence) to 15.10.1996 (i.e., approximately for eleven days). The appellant Tirath Ram was readmitted to hospital on 27.02.1997 and was discharged on 27.03.1997. This clearly, according to the learned counsel for the appellants, indicates the serious nature of the incised injuries sustained by the appellant Tirath Ram. 4. Based on this and the fact that the third accused Des Raj (who died during the pendency of the trial) also received an incised injury, according to the learned counsel for the appellants, the appellants acted in self-defence and there was a scuffle between the complainant party and the accused party and the injuries inflicted on the complainant party were all part of self-defence in the scuffle that took place over an ongoing land dispute. He further submitted that the appellant Tirath Ram, who is alleged to have fired from the pistol which was with him was a police constable in the Security Wing and he was trained to use the weapon. In case, he intended to kill Shiv Kumar, he would not have shot him in the leg, but would have fired at him either on the head or in the heart region. Therefore, the learned counsel for the appellants submitted that the intention was not to kill and more likely, the alleged acts on the part of the appellants were by way of self-defence. Therefore, the learned counsel for the appellants submitted that the intention was not to kill and more likely, the alleged acts on the part of the appellants were by way of self-defence. He submitted that there are other contradictions, such as, the opinion of the Doctor indicating that the injuries on Tirath Ram and Des Raj could not have been self inflicted, but the so called eye witnesses have stated that the injuries were self inflicted. For these and other reasons, the learned counsel for the appellants submitted that there was a very good chance of the appellants succeeding in the appeal. Consequently, he submitted that both, on merits as also for medical grounds in the case of Bali Ram, the sentences of the appellants ought to be suspended and they ought to be released on bail. 5. Mr Nanda, learned Sr. AAG relied heavily on the impugned judgment and opposed the grant of bail. He submitted that the accused Bali Ram, who had absconded earlier cannot be shown any indulgence by this Court. 6. Mr. Saini, appearing for the complainant was also heard. He submitted that the fact that the accused had been released on bail during the trial stage should not be seen as a factor for suspension of sentence and grant of bail at the stage of the appeal after conviction. He submitted that at the trial stage, the accused are presumed to be innocent, but after conviction that presumption no longer holds good. 7. After considering the rival contentions of the learned counsel for the parties, we are of the view that the applicants/appellants Tirath Ram and Bali Ram deserve suspension of their sentences and for being released on bail during the pendency of the appeal. The sentences are suspended in respect of both the applicants/appellants and they are directed to be released on bail during the pendency of the appeal in the sum of Rupees One lac each with two sureties each of the like amount. It will be a condition of their release on bail that they shall not leave the State of Jammu and Kashmir without the prior permission of the Court and that they shall be present in the Court on every date of hearing. 8. This application is disposed of as above.