ORDER : SANJAY KUMAR GUPTA, J. 1. Petitioners, who are under trial in case FIR No. 65/2017 for the commission of offences punishable under Sections 302/34 RPC the trial of which is pending before the learned Principal Sessions Judge Reasi, have filed the present application for grant of bail on the ground that the prosecution has cited as many as 20 witnesses and out of 20 witnesses, 17 witnesses have been recorded by the court below and remaining witnesses are police personnel whose statements are not sufficient to prove the guilt of the accused; that the maximum number of witnesses have turned hostile and have not supported the prosecution case before the court below; that the prosecution witnesses including father, mother and brothers of the deceased have turned hostile and have not supported the prosecution case. Even child (minor) witness namely Mansa Devi has not supported the prosecution case. It has further been stated that the other circumstantial evidence including Mohd. Manzoor, Balbir Singh, Raghu Nath Singh, Darshna Devi, Rita Devi and Kailash Chand have also turned hostile. 2. The State has filed objections wherein it has been stated that accused are facing trial in murder case so they are not entitled to bail; that offence is heinous and carries serious punishment; that the court below has rightly rejected the bail. 3. The relevant para of the order of court below reads as under: "I have gone through evidence recorded by the prosecution, statements admitted by defence and evidence yet to be produced by the prosecution. This court is conscious of the proposition of law that the court cannot discuss the merits or demerits of the prosecution case while dealing with bail application. It is settled preposition of law that real question is whether there is a reasonable ground for believing that a person is guilty of offence depends upon what evidence is offered by the prosecution to prove the charge against him. While reaching such conclusion the court must have to consider the nature and character of the evidence against him. While considering all what has been discussed herein above, it is necessary for the court, for exercising discretion of bail, to see whether there are reasonable grounds for believing that a person is guilty of offence punishable with death or life imprisonment, the court will not grant bail to such a person. While considering all what has been discussed herein above, it is necessary for the court, for exercising discretion of bail, to see whether there are reasonable grounds for believing that a person is guilty of offence punishable with death or life imprisonment, the court will not grant bail to such a person. The scrutiny of evidence needs to be done keeping in mind the distinction between the standard to be adopted for evaluating the evidence for proving the charge and that for examining the evidence for limited purpose of drawing prima facie opinion for releasing the accused on bail. In order to come to the conclusion that a person is guilty the court must consider the nature and 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 accused person is not such that he has committed offence, then, in the normal course said person is entitled to bail. In the present case, there is no dispute that the accused have been charged for the offences punishable under Sections 302/34 RPC. In this case as already discussed that the case is based mostly on the disclosure statement of the accused and recovery of the weapon of offence thereafter. One of the witness to the said disclosure and recovery has been recorded who has deposed before a Magistrate under Section 164-A of the Cr.P.C that accused disclosed in his presence about killing of the deceased and the weapon of offence were recovered thereafter and the said witness during his statement before the court he admitted the contents of the statement made before Magistrate under Section 164-A of the Cr.P.C to be true and correct, other parts of his statement are not incriminating against accused. Another witness to the disclosure made by the accused persons and recovery thereafter, is yet to be examined and also other witnesses including I.O are yet to be examined. Therefore, in view of the above stated reasons 1 do not think accused persons deserve discretion court at this stage. The offence alleged to have been committed by the accused is heinous and entail punishment of death or life sentence. Therefore, in view of the above stated reasons 1 do not think accused persons deserve discretion court at this stage. The offence alleged to have been committed by the accused is heinous and entail punishment of death or life sentence. Unless and until all the witnesses are examined in the case, the court cannot come to the conclusion that there appears no reasonable ground for believing that accused are guilty of an offence punishable with death or imprisonment for life. The net shall result of aforesaid discussion is that bail application of the applicants/accused persons deserve no concession and is accordingly rejected. The bail application is disposed of accordingly and shall be made part of the challan after due compilation". 4. I have considered the rival contentions of learned counsel for the parties. 5. Brief facts of prosecution case are that on 02.11.2017 police came to know from reliable source that the deceased was hanging from a tree in suspicious circumstances. On this, proceedings under Section 174 of the Cr.P.C., came to be initiated and during proceedings under Sections 174 and 175 Cr.P.C, police came to know from the statements of the witnesses that accused persons killed the deceased as accused Jagdish Singh being the brother-in-law of the deceased was unhappy with the deceased regarding his routine scuffle with his sister and statement of the father of the deceased was recorded who raised his suspicion regarding the unnatural death of his son towards the accused persons. Consequently case was registered against accused persons, who as per prosecution story disclosed that they killed the deceased with the help of stone and lathi, which later on were recovered at their instance in presence of the witnesses. 6. Prosecution has cited as many as twenty witnesses. From bare perusal of record, it reveals that maximum number of prosecution witnesses have been examined and learned counsel for the accused has admitted the statements of PWs 15, 16 to 18 and 19, who are formal witnesses to seizure, personal search of accused, revenue map and postmortem report. Now only two witnesses i.e., I.O and HC-Ashwani Kumar are required to be examined. 7. I have carefully gone through the evidence of PWs, whose statements have already been recorded. From perusal of their statements, it would reveal that all the witnesses have turned hostile. Now only two witnesses i.e., I.O and HC-Ashwani Kumar are required to be examined. 7. I have carefully gone through the evidence of PWs, whose statements have already been recorded. From perusal of their statements, it would reveal that all the witnesses have turned hostile. PW Kamal Singh, father of deceased, three brothers of deceased PWs Kuldeep Singh, Mohinder Singh and Balbir Singh; mother of deceased PW Samitri Devi have turned hostile. PW Darshana Devi, sister in law of deceased, independent PWs Mohd. Manzoor, Ragunath Singh, Shamsher Singh and Kailash Chand have turned hostile; PWs Sansar Chand-Lumberdar & Rita Rani have stated nothing incriminating against accused; child witness PW Mansa Devi, niece of accused, has also turned hostile. As already held, counsel for accused persons has already admitted the statements of PWs 15, 16, 18 and 19, who are formal witnesses to seizure, personal search of accused, revenue record and postmortem report. 8. Now only I.O and HC-Ashwani Kumar are required to be examined. HC Ashwani Kumar is photographer, who has taken snaps of dead body at site and is also witness to disclosure statement of accused. 9. Section 497 Cr.P.C. deals with bail in non bail able cases. It reads as under:- "497. 8. Now only I.O and HC-Ashwani Kumar are required to be examined. HC Ashwani Kumar is photographer, who has taken snaps of dead body at site and is also witness to disclosure statement of accused. 9. Section 497 Cr.P.C. deals with bail in non bail able cases. It reads as under:- "497. When bail may be taken in case of non-bailable offence.-(1) When any person accused of [or suspected of the commission of] any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: Provided that the Court may direct that any person under the age of sixteen years of any woman or any sick or infirm person accused of such an offence be released on bail: Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and given an undertaking that he shall comply with such directions as may be given by the Court (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence; but that there are sufficient grounds for further inquiry into his guilt the accused shall, pending such inquiry be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. [(2-a)] When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the State Ranbir Penal Code, 1989, or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-Section (1), the Court may impose, any condition which the Court considers necessary- (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter; or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused, or of the commission of which he is suspected; or (c) Otherwise in the interests of justice.] (3) An officer or a Court releasing any person on bail under sub-Section (1) or sub-Section (2) shall record in writing his or its reasons for so doing. [(3-a) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing the Magistrate otherwise directs.] *[Sub-Section (3-a) added by Act XLII of 1956] (4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. (5) The High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this Section to be arrested and may commit him to custody." 10. From bare perusal of this section, it is evident that bail in non bail able cases cannot be granted as a matter of right, but is discretion of court depending upon various considerations. From bare perusal of this section, it is evident that bail in non bail able cases cannot be granted as a matter of right, but is discretion of court depending upon various considerations. Some of which are (i) The enormity of charge; (ii) The nature of the accusation; (iii) The security of the punishment which the conviction will entail; (iv) The nature of the evidence in support of the accusation; (v) The nature and gravity of the circumstances in which the offence is committed; (vi) The position and status of the accused with reference to the victim and the witnesses; (vii) The danger of witness being transferred with; (viii) The likelihood of accused fleeing from justice; (ix) Probability of the accused committing more offences; (x) The protracted nature of the trial and interest of society at large and prima facie satisfaction of the Court in support of the charge. These are not exclusive considerations, court can consider other facts of case also while allowing or disallowing bail application. As per Section 497 Cr.P.C., court shall not release the accused if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: further as per proviso to this section 497 Cr.P.C., Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: there is sub section (2) of section 497 Cr.P.C, which says that, if it appears to Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bail able offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, pending such inquiry be released on bail, or, at the discretion of such officer or Court. Law is now well settled that while granting or refusing bail, court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police or evidence that has come during trial and comment on the same. Prima facie case in criminal case means that evidence brought on record would reasonably allow the conclusion that the accused is guilty of offence charged. The court must not undertake meticulous examination of the evidence collected by the police or evidence that has come during trial and comment on the same. Prima facie case in criminal case means that evidence brought on record would reasonably allow the conclusion that the accused is guilty of offence charged. It does not mean that a case is proved but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence; if a prima facie case is made out it does not mean that the case has been proved against the accused. 'Prima facie case' is different from proved case. 11. While applying above principles of laws to the present case, it is evident that although offence under section 302 RPC carries punishment up to death or life imprisonment, but as discussed above, all material witnesses including father, mother and real brothers of deceased have turned hostile; further, one of accused is real brother in law of deceased. Conviction cannot be based on testimony of I/O, the only material witness against the accused to be examined. So it can be said that at this stage there is no prima facie case and there are reasonable grounds for believing that the accused have not committed an offence for which they have been charged. 12. In view of above, this application is allowed and petitioners/accused are directed to be released on bail subject to furnishing of personal bonds and surety bonds to the tune of Rs. 1 lakh each to the satisfaction of trial court, provided they shall attend the trial on each and every date and shall not leave jurisdiction of trial court without prior permission. Anything said herein shall not cause any prejudice to trial court while deciding main case. 13. Disposed of accordingly.