JUDGMENT : 1. Petitioner/accused in terms of section 437 of Code of Criminal Procedure has sought the indulgence of this court for her enlargement on bail in case FIR No. 05/2021 for commission of offence u/s 304-B of IPC of Police Station Samba. It is averred, that petitioner/accused is a citizen of India and permanent resident of UT of Jammu and Kashmir, therefore, fully entitled to the protection of her fundamental rights including the right of freedom and liberty; that the petitioner/accused has been wrongly and falsely implicated in FIR No. 05/2021 registered with Police Station Samba for commission of offence punishable under Section 304B IPC; that the allegations against the petitioner/accused are that she and other co accused were alleged to have mentally and physically harassed the victim who was the sister-in-law of the petitioner (real brother's wife) which compelled her to take extreme step of committing suicide; that the petitioner happens to be the sister-in-law (nanad) of the deceased and was living at her matrimonial home situated at Hiranagar District Kathua with her husband and minor kid of four years of age, whereas, the deceased at the time of her death was living at her matrimonial home which is situated at Samba, thus, at the relevant time when the alleged suicide was committed by the deceased, the petitioner was not living at Samba. It is moreso averred, that after the registration of aforesaid FIR against the husband of the deceased, her brother-in-law and sister-in-law were arrested, during the course of investigation the petitioner was also arrested on 26.03.2021 and since then she is facing incarceration in jail; that on completion of investigation, a criminal challan titled UT of J&K vs. Abhishek Badyal and others has been presented which is pending trial before the Court of Ld. Principal Sessions Judge Samba; that the petitioner, after filing of the criminal challan, applied for grant of bail by fling an application before the Court of Ld. Principal Sessions Judge Samba on 03.11.2021 on the basis of evidence which has been recorded in the challan wherein it has come on record that there are no serious allegations against the petitioner nor the allegations leveled against her in the criminal challan are primarily believable; that the bail application filed by the petitioner was opposed by the prosecution and the Ld. Trial Court after considering the bail application filed by the petitioner and the objections filed by the prosecution has passed the order dated 15.12.2021 whereby the bail application filed by the petitioner has been rejected; that the relatives of the victim have also been falsely implicated in the aforesaid criminal case as is the tendency in such like cases of involving married daughters, the petitioner being a married woman was happily living with her husband and minor kid about 30 kms. away from the matrimonial home of the deceased and has nothing to do with the alleged suicide committed deceased; that a mere cursory look to the challan, copy whereof is enclosed herewith as Annexure-1, clearly shows that even the ingredients of section 304-B IPC have not been made out and despite that and coupled with the fact that there is no allegation against the petitioner which prima facie connects her with the commission of offence punishable section 304-B IPC; that the petitioner is facing incarceration in jail for the last about 9 months by now and her minor son aged about 4 years has been denied and deprived of the love and affection of her mother, the denial of bail to the petitioner by the Ld. Trial Court on the ground that minor son can be taken care of by his father is absolutely unreasonable inasmuch as the love and affection of mother cannot be replaced by the care of the father who has also to work for earning the livelihood of his family; that the petitioner continues to be in custody since 26th March, 2021, the other co-accused persons in the aforesaid criminal challan have already been admitted to bail by the Ld. Trial Court vide order dated 31.05.2021 and 28.10.2021 respectively, who happens to be the sister-in-law (Bhabi of the deceased) and father-in-law of the deceased; that the Court of Sessions Judge Samba while rejecting the bail application filed by the petitioner has failed to appreciate that there were no specific allegations nor was there anything incriminating against the petitioner in the FIR, therefore, invoking of section 304-B IPC by the Police against the petitioner was ill-founded; that the Ld. Court below has further not considered another crucial aspect of the matter that except allegations there was no proof documentary or otherwise which even remotely suggested involvement of the petitioner in the commission of offence punishable under section 304-B IPC, in absence of any such evidence the Ld. Trial Court is not justified in denying the bail to the petitioner; that the Ld. Trial Court has further failed to appreciate that the fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty, bail is the general rule and putting a person in jail or in a prison is an exception, the guilt of the petitioner in the instant case is not coming forth from anywhere and the Ld. Court below without any justifiable reason or ground rejected the bail plea of the petitioner by pressing into service such grounds and reasons which are legally not sustainable; that the Ld. Court below has further not appreciated that legal position that in order to attract the application of Section 304B of the Indian Penal Code, the principles that have emerged from various decisions of the Hon'ble Supreme Court of India as well as various Hon'ble High Courts are that (i) the death of the woman should be caused by burns or bodily injuries or otherwise than in normal circumstances, (ii) such a death should have occurred within seven years of marriage, (ii) she must have been subjected to cruelty and harassment by her husband or by any relative of the husband (iv) such cruelty or harassment should be made for/or in connection with the demand of dowry, the initial burden lies on the prosecution to prove the basic ingredients of Section 304B of the Indian Penal Code, and if the prosecution succeeds in discharging the initial burden, then the provision of Section 113-B of the Indian Evidence Act shall come into play and can be pressed into service for drawing the presumption as against the accused person persons that he caused the dowry death; in the instant case, there is no evidence on record which remotely suggests that the deceased was ever subjected to any kind of harassment, except allegations, there is no other evidence connecting the petitioner with the commission of crime. Prayer has been made for enlargement of accused on bail. 2. Prayer has been made for enlargement of accused on bail. 2. Respondents have opposed the bail on the grounds, that the allegations against petitioner are serious, therefore, concession of bail in her favour would not be in the interest of society at large; it is settled law, that bail may be refused if there is likelihood of the accused tempering with the witnesses for prosecution or otherwise polluting the process of justice; as per the prosecution case accused alongwith other co-accused use to constantly torture deceased Palvi for dowry and golden gifts and on 31-12--2020 accused persons quarreled and beat the deceased miserably, whereby, deceased had no option left and took a drastic step to get rid of the oppression from her in-laws and committed suicide by hanging herself with roofs fan hook of store room of her residential house; the medical opinion show that injury marks were noticed on the body of the deceased hence offence u/s 304-B IPC proved during investigation against accused persons viz.; (1) Abhishek S/o Bodh Raj, (2) Bodh Raj S/o Mani Ram, (3) Darshna Devi W/o Bodh Raj, (4) Neeraj Badyal S/o Bodh Raj, (5) Ekta Mehra @ Ishu Badyal W/o Neeraj Badyal R/o W. No. 8 Samba & (6) Shilpa @ Shama W/o Suresh Kumar R/o Hiranagar Kathua. Prayer has been made for rejection of the bail. 3. Ld. Counsel for accused have vehemently sought release of accused on bail by projecting arguments, that for the last more than 1 year accused is languishing Jail in District Jail Kathua, "bail is a rule" and "refusal is an exception", personal liberty of accused is of paramount importance as she is presumed to be innocent till guilt is proved against her, keeping of accused in incarceration in the jail would amount to inflicting pre-trial punishment which is against the basic principle of criminal jurisprudence. It is argued, that accused is living separately with her husband at Hiranagar Kathua and even at the relevant time of occurrence she was not in the company of co-accused, moreso, the other co-accused persons namely, A-2 Bodh Raj S/o Mani Ram & A-5 Ekta Mehra @ Ishu Badyal W/o Neeraj Badyal R/o Ward No. 8 Samba have already been admitted to bail by the Ld. Trial Court vide orders dated 31.05.2021 and 28.10.2021 respectively, who happen to be the father-in-law & sister-in-law (Bhabi) of the deceased. Trial Court vide orders dated 31.05.2021 and 28.10.2021 respectively, who happen to be the father-in-law & sister-in-law (Bhabi) of the deceased. It is moreso argued, that petitioner has deep roots in the society and therefore does not possess golden wings to flee from justice, some of the material prosecution witnesses who are the close relatives of the deceased have been examined and therefore, there is no question of them to be win over by the petitioner/accused. 4. Ld. AAG has strenuously opposed the bail by articulating arguments, that offence indicted against the accused is serious & heinous punishable with maximum imprisonment upto life which is against the society at large as the victim has been put to cruelty by the accused for demand of dowry who was left with no option but to commit suicide. It is argued, that there is every likelihood of accused fleeing from justice if enlarged on bail, and moreso, there is every possibility that the accused on bail will influence the prosecution witnesses and spoil the case of prosecution. 5. Heard Ld. Counsel for the accused and Ld. AAG for respondents. I have perused the record carefully. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by the ld. Counsel for the accused in the bail application is required to be examined generally. Petitioner/accused is indicted for commission of offence u/s 304-B IPC of Police Station Samba. Charge sheet against accused persons including petitioner/accused has been presented in the court on 17.03.2021. Charges have been framed by the trial court on 08.09.2021 against the accused persons, and the instant challan is at the stage of prosecution evidence. Petitioner/accused is indicted for commission of offence u/s 304-B IPC of Police Station Samba. Charge sheet against accused persons including petitioner/accused has been presented in the court on 17.03.2021. Charges have been framed by the trial court on 08.09.2021 against the accused persons, and the instant challan is at the stage of prosecution evidence. Six (6) prosecution witnesses including the parents and family members of deceased are the star witnesses of the prosecution, while other witnesses include the doctors, police officials and 3 civil witnesses. In a case reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors. v. State & Ors.), Hon'ble Mr. Justice Sunil Hali (His Lordships the then was Hon'ble Judge of the High Court) while granting bail to the accused charged for commission of offence u/s 306/498-A RPC, and while discussing the principles of "prima-facie case", "question of influencing the prosecution witnesses" & "approach of the court in granting bail in non-bailable offences", in paras 17, 18 & 19 of the judgment held as under:- "17. While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence. 18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Judge to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent. 19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. It is mere bald assertion, which cannot be accepted unless there is some material to that extent. 19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent. Ratio of the judgment (Supra) makes the legal position abundantly clear, that even if prima-facie case is established, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses viz.; prosecutrix and her parents cannot be expected to be win over by the accused. In another case law reported in 2016 (2) JKJ 702 [HC], J&K High Court, [Arjun Katal & Ors. v. State of J&K & Ors.] Hon'ble J&K High Court while granting bail to accused for offences u/ss 498A, 304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17, 25 & 26 of the judgment held as under:- B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt., 1989, Section 498A, 304B and 306-Dowry death-Grant of bail-Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners-Bar under proviso of Section 497C not attracted-Petitioner husband and mother-in-law in custody for more than one years-Refusing bail nothing but punishing petitioners for alleged involvement in death of deceased -Bal allowed. 17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. 17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. There seems substance in the argument of learned counsel for the petitioners that entire evidence implicating the hole family including parents-in-law and brother-in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O. did not even investigate whether the brother-in-law was also present in the house during those days or not. 25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court. 26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015. Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners' tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners' tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law. Ratio of judgment (Supra) also makes the legal proposition abundantly clear, that refusing bail is nothing but punishing the accused, whether the accused is responsible for the death of the deceased has to be verified during trial and material witnesses viz.; family members of deceased cannot be win over. Ratios of the judgments of "Jagdish Kumar's Case" & "Arjun Katal's Case", (Supra) make it manifestly clear, that the approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his/her presence would be readily available for trial & material witnesses viz.; family members of the deceased cannot be win over. Applying the ratios of judgments (Supra) to the facts of the case in hand, it is apt to mention here, that out of the 6 accused persons, two accused persons A-2 Bodh Raj (father-inlaw of deceased) & A-5 Ishu Badyal (sister-in-law of deceased) have already been granted bail by the trial court of Pr. Sessions Judge Samba vide orders dated 28.10.2021 & 31.05.2021 respectively. Petitioner/accused is a married women and was residing with her husband in Hiranagar Kathua, but she has also been indicted in the case in hand as one of the co-accused and since her arrest on 26.03.2021 she is lying in detention in District Jail Kathua for the last more than 1 year. Petitioner/accused has deep roots in the society and her presence can be secured by directing her to furnish sufficient security. As per the ratios of the judgments (Supra), the legal position is no longer res-integra that "every accused is presumed to be innocent till his/her guilt is proved", "approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his/her presence would be readily available for trial" & "material witnesses viz; family members of the deceased cannot be win over". The powers to grant bail has to be considered in the backdrop of constitutional guarantees contained in Article 21 of Constitution of India which guarantees right to liberty of an individual (Vide Jagir Singh v. Jagjit Singh & Anr. reported in 2012 (2) JKJ 231 [HC]. Every accused has a right to defend his case and by keeping the accused in detention, it would defeat his right to defend his case. Petitioner/accused in the case in hand cannot be kept in incarceration for a sufficient indefinite long time as a matter of punishment. The offence indicted against petitioner/accused does not carry a punishment of death penalty or life imprisonment, but alternative punishment of not less than 7 years which may extend to life imprisonment. The apprehension of the prosecution that petitioner/accused will abscond can be secured by way of sufficient surety from her. Keeping of accused in continuous detention would amount to infringement of her fundamental right of personal life and liberty and inflicting pre-trial punishment. In view of the aforesaid discussion, as the material prosecution witnesses who are the close family members of the deceased and are not expected to be win over by the accused, at this stage, petitioner/accused has carved out a strong case for bail in her favour. Petitioner/accused is, therefore, admitted to bail in the sum of Rs. 1,00,000/- (Rs. One lac only) before Registrar Judicial of this Court with the direction to furnish personal recognizance of the like amount before Superintendent District Jail Kathua. However, before parting, the following conditions are imposed upon the accused:- (i) that the petitioner/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before this court; (ii) that the petitioner/accused shall appear before the trial court on each and every date of hearing except for special circumstances beyond his control in which case she shall seek exemption from the trial court; (iii) that in case prosecution collects any material during the period the accused is on bail that she has influenced the witnesses or tried to intimidate them, the prosecution would be well within its right to move an application before this court for cancellation of her bail. 6. Disposed of accordingly.