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2021 DIGILAW 376 (JK)

Nassurullah Khan v. Union Territory of J&K

2021-07-28

RAJNESH OSWAL

body2021
ORDER : Rajnesh Oswal, J.-The present bail application has been filed by the petitioners seeking bail in the challan titled “U.T. of J&K vs Nasarullah Khan & Ors” pending before the learned Sessions Judge, Poonch (hereinafter to be referred as the trial court) arising out of FIR bearing No. 74/2020 of Police Station, Surankote for commission of offence under section 304 IPC, on the ground that they have not committed any offence and the medical evidence would clearly show that the petitioners are not involved in any offence. 2. It is contended in the petition that Mohd. Alam, deceased died in his own house as a natural death. It is further stated that out of 28 witnesses, statement of 08 witnesses have been recorded and one witness has turned hostile and further that the witnesses examined by the prosecution till date do not make out a case against the petitioners and also that the petitioners have filed an application before the learned trial court for admitting the statement of the witnesses PW Nos. 17, 18, 19, 20, 22, 25 and 26. The petitioners had moved an application for grant of bail before the trial court but the learned trial court without appreciating the contentions of the petitioners has rejected the bail application vide order dated 23.01.2021. 3. Response stands filed by the respondents 1 and 2, in which it is stated that the petitioners have committed a heinous offence, as such, they are not entitled to bail. It is further stated that the evidence cannot be appreciated while considering the bail application and further that the petitioners may influence the important witnesses of the case. 4. Mr. Gagan Basotra, learned senior counsel appearing for the petitioners has vehemently argued that the report of post mortem would show that there are no external or internal injuries on the body of the deceased and cause of death of the deceased is mentioned as ‘Cardio Pulmonary Arrest’. 4. Mr. Gagan Basotra, learned senior counsel appearing for the petitioners has vehemently argued that the report of post mortem would show that there are no external or internal injuries on the body of the deceased and cause of death of the deceased is mentioned as ‘Cardio Pulmonary Arrest’. He further argued that the petitioners were falsely implicated as is evident from the fact that besides the petitioners, initially allegations were leveled against two more persons, who were subsequently found innocent by the Investigating Officer and also the claim of the complainant/respondent No. 3 herein that the petitioners were armed with Lathis, Axe and stones, is belied by the Investigating Officer with its positive finding that no weapon of offence was found by him and that the accused were not armed with lathis and axes. 5. Per contra, Mr. Adarsh Bhagat, learned GA appearing for the official respondents has argued that there are chance of tampering of evidence as other important witnesses, are yet to be examined and that the evidence cannot be appreciated at this stage. 6. Mr. A. M. Malik, learned counsel appearing for the complainant/ respondent No. 3 herein, has vehemently argued that the petitioners are guilty of heinous offence and the evidence led by the prosecution cannot be appreciated by this Court while granting bail. 7. Heard and perused the record. 8. Briefly stated, on 30.05.2020 the complainant, namely, Sikandar Hayat Khan, respondent No. 3 herein, lodged a written complaint against the all the petitioners as well as Kramatullah Khan and Amanullah Khan, in which it was stated that on 10.00 AM, he and his father Mohd. Alam and Uncle, Faiz Alam Khan went to sow the maize crop in a land purchased by Faiz Alam Khan. The accused had hidden themselves in the said land and as soon as they went into the land, the accused told that they would not permit them to sow the maize crop. When they tried to come back, the accused attacked his father in a brutal manner and he died on spot. The accused persons were armed with lathis, Axes and stones and thereafter the accused attacked the complainant as well as his uncle to kill them but they saved their lives by running away. Some people after hearing the noise came on spot and stopped accused, otherwise the accused persons would have killed them. The accused persons were armed with lathis, Axes and stones and thereafter the accused attacked the complainant as well as his uncle to kill them but they saved their lives by running away. Some people after hearing the noise came on spot and stopped accused, otherwise the accused persons would have killed them. Pursuant to this complaint, FIR bearing No. 74/2020 for commission of offences under sections 302, 147, 148 IPC was registered against the accused persons and the other two Amanullah Khan and Karamatullah Khan. However, during the course of investigation, the Investigating Officer visited the spot and conducted the photography of the deceased Mohd Alam. During the course of investigation, no weapon was found around the dead body of the deceased and on examination of the dead body, no external injury was found on the dead body of the deceased. Only on the clothes of the dead body of the deceased at the place of the abdomen, sign of soil and sand were found. The post mortem of the deceased was conducted and the statements of the witnesses were recorded. The Investigating Officer, thereafter, arrested the petitioners. The medical opinion was also received. In the post mortem report, the medical official wrote that after receiving reports from FSL and Pathology department GMC Jammu, “I am of the opinion that the deceased had Pre-existing coronary Atherosclerosis which aggravated by sudden physical exertion leading to cardiac ischemia which further led to cardio Pulmonary arrest and death of time since death is less than 4 hours”. 9. During the course of investigation, it was also found that the two accused persons, namely, Kramatullah Khan and Amanullah Khan S/o Nassarullah Kkhan both resident of Tehsil, Surankote were not present on spot at the time of incident, after obtaining their mobile numbers and tracking their mobile tower location at the time of incident. During the investigation, it was also not proved that the petitioners were having sticks and axes in their hands and as such, after the conclusion of the investigation, Investigating Officer found that the offences under sections 302, 147 and 148 IPC were not proved but only 304 IPC was proved so after the completion of the formalities, the challan for commission of offence under sections 304 IPC was filed against the petitioners. The petitioners had filed the bail application before this Court however, the same was withdrawn as the charges were yet to be framed and after framing of charges and examination of number of witnesses, the petitioners filed the application for grant of bail before the trial court but the same was rejected by the learned trial court vide order dared 20.03.2021. Hence the present bail application. 10. A perusal of the record reveals that the charges under section 304 IPC have been framed against the petitioners on 12.11.2020 and thereafter the prosecution has examined PW Nos. 2, 3, 4, 6, 7, 10 and 24, whereas PW No: 11 was left by the prosecution and PW 13 turned hostile. It is also required to be noted that besides these witnesses, the petitioners have admitted the statements of PW Nos. 17, 18, 19, 20, 22, 25 and 26. The list of witnesses reflects that there are 28 witnesses in total, out of which now only 12 are required to be examined and out of these 12 witnesses, the most important witness is PW-1 who is the complainant in the instant case and who is also objecting the instant bail application. 11. The perusal of charge framed against the petitioners on 12.11.2020 reveal that the allegations against the petitioners are that on 30.05.2020 at 10 A.M., the scuffle took place between both the parties as a result of which Nasarullah Khan i.e. petitioner No.1 got injured and seeing this, all the petitioners attacked and because of fists and blows Mohd. Alam fell down and died. So far as the allegations against the petitioners are concerned, there is no charge against the petitioners for use of any arm in the occurrence and rather the story projected by the complainant initially in his report was belied by the Investigating Officer. As per the allegations the deceased died during the scuffle and as per post mortem report, the deceased died because of Cardio Pulmonary Arrest as he was already suffering from ‘Pre-existing coronary Atherosclerosis’. The said disease was aggravated by the sudden physical exertion leading to the cardiac arrest. It is also worthwhile to mention here that there is no injury either internal or external on any part of the body of the deceased as is evident from the post mortem report. 12. The said disease was aggravated by the sudden physical exertion leading to the cardiac arrest. It is also worthwhile to mention here that there is no injury either internal or external on any part of the body of the deceased as is evident from the post mortem report. 12. The Hon’ble Apex Court has considered the relevant considerations for grant of bail in Jayendra Saraswathi Swamigal v. State of T.N., reported in (2005) 2 SCC 13 and the relevant para is extracted as under: 16. “The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh [ (1962) 3 SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215] and Gurcharan Singh v. State (Delhi Admn.) [ (1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179 ] and basically they are - the nature and seriousness of the offence; the character of the evidence; 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 witnesses being tampered with; 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.” 13. Then again in Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458 , Apex Court has held as under: 29. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. 31. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. 14. In Dataram Singh v. State of U.P., reported in (2018) 3 SCC 22 , Apex Court has held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 15. Also in Arnab Manoranjan Goswami v. State of Maharashtra, reported in (2021) 2 SCC 427 Apex Court has held as under: “70. This does not do any good to our criminal jurisprudence or to our society. 15. Also in Arnab Manoranjan Goswami v. State of Maharashtra, reported in (2021) 2 SCC 427 Apex Court has held as under: “70. More than four decades ago, in a celebrated judgment in State of Rajasthan v. Balchand (1977) 4 SCC 308 : 1977 SCC (Cri) 594], Krishna Iyer, J. pithily reminded us that the basic rule of our criminal justice system is “bail, not jail” [ These words of Krishna Iyer, J. are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are : State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2) and Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397]. The High Courts and courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the “subordinate judiciary”. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground-in the jails and police stations where human dignity has no protector. As Judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. Courts must be alive to the situation as it prevails on the ground-in the jails and police stations where human dignity has no protector. As Judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the “solemn expression of the humaneness of the justice system” Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.” 16. So far as, the instant case is concerned, it is evident that the deceased died during the scuffle in which one of the petitioner had also suffered injury, the petitioners were unarmed, the medical report demonstrates that the deceased having no external or internal injury, died due to cardio pulmonary arrest. There was land dispute between the parties and initially two more persons were involved in FIR, who were subsequently found innocent by Investigating Officer. More so, it is not forthcoming from the record that the petitioners knew that the deceased was suffering from such type of disease and by indulging in such occurrence, the death of the deceased has been caused by the petitioners. This Court has refrained from returning any finding with regard to the fact as to whether the deceased died due to aggravation of disease during scuffle or not in view of the evidence brought on record, as this Court cannot appreciate the evidence but the nature of the medical evidence on the face of it demonstrates that the primary cause of death was ‘Cardio Pulmonary Arrest’ and this Court leaves it for the trial court to determine as to whether the deceased had died because of aggravation of disease that he was already suffering or not. 17. The nature of accusations and the character of evidence are one of the relevant considerations for grant or refusal of bail. The petitioners are not charged for committing offence of murder. 17. The nature of accusations and the character of evidence are one of the relevant considerations for grant or refusal of bail. The petitioners are not charged for committing offence of murder. Also there is nothing on record that the petitioners are having past criminal antecedents and most of the material witnesses have been examined by the prosecution and few witnesses remain to be examined. As the petitioners are not hard core criminals so there can be no apprehension of influencing the witnesses but still the apprehension of the respondents that the petitioners may try to influence the witnesses can be taken care of by imposing appropriate conditions upon the petitioners. 18. In view of what has been discussed above and taking in to consideration the nature of allegations and character of evidence in support thereof, this Court is of the opinion that the petitioners deserve to be enlarged on bail, as such, this bail application is allowed. The applicants/petitioners are enlarged on bail on the following conditions: (i) subject to furnishing of two solvent sureties to the tune of Rs. 50,000/- each to the satisfaction of the trial court and personal bond of the like amount each. (ii) they shall not contact with any of the prosecution witnesses during the trial and shall appear before the trial court on each and every date of hearing. (iii) they shall not leave the territorial jurisdiction of the District Poonch without prior permission of this Court. 19. In the event of violation of any of the conditions mentioned above, the respondents can lay a motion for cancellation of bail of the applicants/petitioners before this Court. 20. Disposed of accordingly.