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2018 DIGILAW 738 (JK)

Imtiaz Ahmed v. State of J&K

2018-09-28

SANJAY KUMAR GUPTA

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JUDGMENT : 1. The instant bail application has been filed by the applicants/petitioners, seeking grant of bail under Section 498 Cr.P.C. in FIR 152/2015 u/s 302/34 RPC of police station Kishatwar. 2. It has been stated in the instant bail application that petitioner Nos. 1 and 2 are the real brothers and petitioner No. 3 is their father. All the three petitioners are facing criminal trial in case titled, Imtiaz Ahmed and Ors. Vs. State. for offences under Sections 302/34 RPC, which is pending disposal in the Hon’ble Court of Principal Sessions Judge, Kishtwar. The case was initially registered pursuant to an FIR being No. 152/2015, registered at Police Station, Kishtwar on 05th September, 2015 for offences under Section 302/34 RPC. It has also been stated that in the charge-sheet, the prosecution in all has cited 41 witnesses for allegedly proving the charges against the petitioners, besides the material relied upon by way of documents forming part of the charge-sheet. Perusal of the police report clearly shows that besides petitioner No. 1, the Investigating Agency had apprehended four other persons, namely, Nishat Ahmed S/o Mohd. Sikander Mir R/o Hullar; Abdul Jabbar S/o Ghulam Rasool Khan R/o Hulla; Muzaffar Hussain and Shehzad Ahmed sons of Shamsdin R/o Hullar, but later on they were left by giving them the benefit under Section 169 Cr. P.C. The accused persons were charge-sheeted by the Court below and eleven witnesses have been examined, which includes four eye witnesses and seven other witnesses. In the aforesaid FIR, the name of only one accused, i.e., petitioner No. 1 has been given while the names of other petitioners have not been alleged. There is delay in recording the statement of the witnesses under Section 161 Cr. P.C. It has also come in the investigation that some of the prosecution witnesses, who are the real relatives of the deceased were demanding money from the persons of the area by threatening them to implicate in the murder case if they do not pay the demanded money. 3. The petitioners’ counsel has placed reliance on the judgments of Hon’ble Supreme Court in cases titled, Lakshmi Singh Vs. State of Bihar, 1976 AIR (SC) 2263, Dharmendra Chandulal Patel Vs. State of Gujarat, 2002 AIR (SC) 395 and Krishnegowda and Ors. Vs. 3. The petitioners’ counsel has placed reliance on the judgments of Hon’ble Supreme Court in cases titled, Lakshmi Singh Vs. State of Bihar, 1976 AIR (SC) 2263, Dharmendra Chandulal Patel Vs. State of Gujarat, 2002 AIR (SC) 395 and Krishnegowda and Ors. Vs. State of Karnataka by Arkalgud Police, 2017 (3) Supreme 229 as well as on the judgments of this High Court in cases titled, Ahmad Shiekh and Ors. Vs. State, 1975 Kash LJ 195 and Tarlok Chand Mahajan Vs. State, 2005 (3) JKJ 486 .” 4. Objections have been filed on behalf of the respondent, wherein it has been stated that the accused have committed heinous offence and they are not entitled to any bail for the offences, for which they have been charged. The accused are facing the trial in the grave offence, which is punishable upto life imprisonment or death sentence. Section 34 is applicable in the present set of the case, so no case is made out for grant of bail. The Trial Court has already dismissed the bail by way of reasoned order. 5. I have considered the rival contention. 6. From the Photostat copies of the record annexed with the petition, it is evident that the accused in pursuance of common criminal intention committed the offence of murder of the deceased. 7. The brief facts of the case are that from the reliable source, information was received in Police Station, Kishtwar on 05th September, 2015 that accused No. 1, i.e. Imtiyaz Ahmed has committed the murder of one person, namely, Nissar Ahmed by inflicting stab injury with Krich in his belly. On this, investigation was commenced, which culminated into filing of charge-sheet before the Court below. From the investigation, it was found that the accused persons with common criminal intention committed the murder of Nissar Ahmed S/o Shabir Bhagwan R/o Hullar Kishtwar. The alleged stab injury was inflicted by Imtiyaz Ahmed in furtherance of common intention shared with other accused due to prior enmity with the deceased regarding plying of Matador on the route Kishtwar to Padyar. During the course of trial, four witnesses as well as other witnesses have been recorded till filing of the application on 09th November, 2017. 8. I have carefully gone through the statement of PWs recorded during the course of trial. 9. During the course of trial, four witnesses as well as other witnesses have been recorded till filing of the application on 09th November, 2017. 8. I have carefully gone through the statement of PWs recorded during the course of trial. 9. First argument of counsel for petitioner is that there are contradiction in the statements of witnesses, examined so far, as two witnesses and FIR did not mention name of petitioner Nos. 2 & 3. I have considered this aspect of the matter; it is true that FIR does not mention name of accused no. 2 and 3, but this argument is not tenable at this stage, because FIR has been lodged from some reliable source and not by some aggrieved person. FIR is not an encyclopedia, which should contain detail of occurrence and name of accused especially when it is lodged on the basis of reliable source. 10. Further PW-Mohd. Abbas has categorically stated in the Court that the applicants along with accused No. 1 was present at the place of occurrence and has also stated about their previous enmity with deceased in respect of plying of Matador on the particular route. Similarly, PW-Mohd. Israel has stated that the applicants along with the accused were present on the spot, who had some loud arguments with deceased. The eye witnesses have testified that accused No. 1 inflicted Krich injury on the belly of the deceased. They have also stated that there was previous enmity of the accused with the deceased. Although some of the witnesses have not stated the name of all the accused specifically. This contradiction in the statement cannot be taken into consideration while granting bail. Further detail appreciation of evidence cannot be conducted at this stage ,which can be conducted at final stage. 11. Apex Court in Criminal Appeal No. 1175 of 2018 (Arising from SLP (Criminal) No. 5440/2017) in case title State of Orissa vs. Mahimananda Mishra, on 18 September, 2018, has held as under: “12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of Neeru Yadav vs. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14 SCC 496 . It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal-antecedents of the accused. It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the accused. The judgment of this Court in the case of Anil Kumar Yadav vs. State (NCT) of Delhi, (2018) 12 SCC 129 . 13. Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the respondent.” 12. Another ground taken is that whole of family is inside the jail, and there is no male member in family to look after other female members. This argument is also not tenable, because accused/petitioners are facing trial in murder case, wherein punishment is death or life imprisonment. One more argument of counsel for petitioners is that there is delay in recording the statement of the witnesses under Section 161 Cr.P.C. and it has also come in the investigation that some of the prosecution witnesses, who are the real relatives of the deceased were demanding money from the persons of the area. This argument is also not tenable as, these draw backs in investigation can be seen at final stage of case and these cannot be considered at the time of considering the bail petition. I have gone through the laws cited by counsel for petitioners and facts of present case. This argument is also not tenable as, these draw backs in investigation can be seen at final stage of case and these cannot be considered at the time of considering the bail petition. I have gone through the laws cited by counsel for petitioners and facts of present case. On facts, the laws cited is not applicable; further laws cited by counsel have already been taken care of by trial court in its right perspective. Trial is at mid stage; there is every apprehension of tampering of rest of prosecution witnesses. 13. In view of above, this petition is dismissed at this stage.