Jammu & Kashmir High Court
Suriya Bibi vs State Of J&K; on 30 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
BA No.57/2018 & IA No.01/2018
Date of order:30.11.2018
Suriya Bibi vs State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner (s) : Mr. Rajnesh Oswal, Advocate
For respondent(s) : Mr. C. M. Koul, Sr. AAG
1. Suriya Bibi, who is facing trial in case FIR No.37/2015 for offences under Sections 302/34 RPC has filed the present application for grant of bail on the following grounds:-
(i) that due to ailing condition, the petitioner needs assistance of somebody to do her day to day work, which is not possible in jail;
(ii) that the petitioner being an old lady is suffering from various old age ailments and prior to her arrest in this case, she was on medicine;
(iii) that in terms of Section 497 Cr.P.C., the court has power to grant bail to any person under the age sixteen years or any woman or any sick or infirm person accused of such an offence;
(iv) that the petitioner falls under two categories of above proviso;
(v) that the petitioner had applied for grant of bail on the same grounds, which the trial court has rejected vide order dated 21.04.2018 on the ground that the bail of the petitioner had already been rejected on 06.12.2017 on the similar set of circumstances.BA No. 57/2018 Page 1 of 9
2. The State has filed objections wherein it is stated that the accused has committed serious offence and she is involved in a case for which the punishment of death or life imprisonment is prescribed, therefore, the bail cannot be granted in ordinary manner.
3. I have considered the rival contentions of learned counsel for the parties.
4. Learned counsel for the petitioner during course of the arguments has relied upon the judgments of the Supreme Court as well as of this Court in case titled Seema Singh vs Central Bureau of Investigation and another, reported in 2018 (2) Law Herald (SC) 640; in case titled Gulshan Begum vs State and others, reported in 2017 (3) JKJ 315; and in case titled Haji Mohd. Jaffer vs State of J&K, reported in 2014 (1) JKJ 29.
5. Before coming to the conclusion of the present petition, it is necessary to place on record the brief facts of the case which are that; on 18.10.2014 at about 10.00 am, from reliable source an information was received in P/P Sidhara that at IMPA building on the edge of Kacha road, dead body of Shamshad Bibi w/o Rashid Ahmed has been lying. The missing report of this lady had been endorsed in Roznamcha No.9 dated 17.10.2014 in police post Sidhra.
As the matter was pertaining to death of a female, so the cause of death was required to be ascertained. In this regard, the inquiry u/s 174 Cr.P.C. was initiated vide „Rapat no.6‟ dated 18.10.2014. During inquiry S.I Mohd. Arif visited the spot near IMPA building and prepared site map. The dead body was seized for conducting BA No. 57/2018 Page 2 of 9 post-mortem. The photography of site was got conducted. The post mortem was got conducted from Medical Board from GMC Jammu. The clothes of dead body were seized. One mobile phone of Nokia which was given by medical board was also seized. The dead body was given to legal heirs for conducting of last rites after postmortem. The statements of witnesses u/s 175 CrPC were recorded and viscera of dead body which was obtained from GMC Jammu was sent for medical examination to FSL Jammu. The reports of FSL and postmortem were obtained. The medical board opined that cause of death could not be ascertained due to decomposition of dead body.
During inquiry on 22.02.2015, the real brother of deceased Shamshad Bibi got recorded his statement. He categorically stated that deceased has been murdered by her husband Rashid Ahmed, his brothers Arshad Ahmed, Rafiq Hussain Ss/o Kaki and Mst. Suriya Bibi W/o Kaki. On this statement, on 22.02.2015, In-charge Police Post, Sidhra, Mohd Arif sent a docket to police station, Nagrota consisting of two pages for lodging of FIR. In the docket, it has been written that SI Mohd Arif along-with HC Bal Krishan, Ct. Mushtaq and Ct. Gulzar Ahmed along-with driver had gone to Dagyali with regard to conducting of the inquiry u/S 174 CrPC of death of Mst. Shamshad Bibi.
On that day, Karamat Ali S/o Babu got recorded his statement u/s 175 CrPC. In the statement, he stated that his real sister Shamshad Bibi was married in 2004 on 26.02.2004 with Rashid Ahmed S/o Kaki caste Gujjar R/o Dagyali. Out of marriage, one male and two female were born out. After marriage, the relations between his BA No. 57/2018 Page 3 of 9 sister and her husband remained cordial for two years. Thereafter she was beaten and abused without any rhyme and reason. He and other persons asked in-laws of Shamshad Bibi not to beat her but accused Rashid Ahmed, Arshad Ahmed, Rafiq Aahmed and Suriya Bibi, their mother, used to beat her. But his sister tolerated the beating of these four persons. One committee was held with regard to beating of her sister. In committee, he and his brother had gone at Dagyali, Sidhra. Besides them, Sarpanch Mohd. Alam and other persons also participated. In the committee Irshad Ahmed Kaki stated that he will murder Shamshad Bibi and do whatever they can do. Thereafter, he and his brother were asked by Sarpanch that nobody will beat their sister and accused are talking uselessly. Thereafter, his sister was beaten by the wife of Rafiq Ahmed in presence of her mother-in-law. On 06.10.2014, his sister Shamshad Bibi came to his house at Jagti and stated that she had been beaten 2/3 days back; he asked her as to who had beaten her; on this his sister Shamshad Bibi stated that Rashid Ahmed, Irshad Ahmed, Rafiq Ahmed and her mother-in-law Suriya Bibi had beaten her. She had been frightened of these four persons because she was apprehending that these four would kill her. Thereafter on 10.10.2014, his mother i.e., the mother of his sister Samshad Bibi went to her house at Dagyali. There accused Rashid Ahmed, Arshad Ahmed, Rafiq Ahmed and Suriya Bibi asked his mother to give Rs.3 lac, otherwise she can take her daughter back. On this, his mother stated that they are poor persons and cannot give Rs.3 Lac. On this, the accused persons stated that in case Rs.3 Lac is not given, they will kill her daughter. On this, his sister Shamshad Bibi asked her mother to go back to home because she cannot leave her BA No. 57/2018 Page 4 of 9 children; Let accused kill her but she will not leave her children. Thereafter, on 15.10.2014, at night, all the accused persons killed his sister. He is sure that accused would have killed his sister because prior to death of Shamshad Bibi, these four persons used to threat her of murder. However, Kaki S/o Nathu did not commit murder but he has conspired with other accused to commit murder. Prior to committing murder Rashid Ahmed used to bring one lady at home and used to say that he will solemnize second marriage with her. He also threatened her sister that in case she would narrate this fact to anyone she will be murdered. Thereafter, on 30.05.2016, Amit Kumar DySP, was appointed as SDPO Nagrota and he investigated the matter. He found that board of doctors have opined in the postmortem report that due to decomposition of dead body the cause of death could not be ascertained. Thereafter, SDPO inspected the spot and he 1istened the complainant party sympathetically. The family of deceased was consisting of brother- in-law, mother-in-law, father-in-law and the daughter of deceased aged 11 years; the deceased had also one more daughter and son who were small kids. He recorded the statement of brother and mother of deceased u/s 161 CrPC. From the statement it was found that Rashid Ahmed used to beat and threaten the deceased to kill her without any reason. Rashid Ahmed wanted to solemnize second marriage after killing the deceased. Thereafter, some eye witnesses came to SDPO and their statement u/s 164-A Cr.P.C. were got recorded from court.
As per statements of these witnesses, it was found that on 18.10.2014, in the morning at about 4/4.30 pm, Rashid Ahmed and Rafiq Hussain Ss/o Kaki thrown the dead body of deceased at near BA No. 57/2018 Page 5 of 9 IMPA building towards kacha road. The witnesses also recognized them. Thereafter, a special team was constituted by SSP, Jammu vide no. CRB/16/45295800 dated 09.09.2016 under the supervision of SDPO Mohd Syed Qureshi, SPO District Court, Insp. Karan Chalotra, SHO Police Station Nagrota and SI Mohd Arshad In- charge Police Post, Sidhra and ASI Abdul Majid of Police Post Sidhra.
Accordingly, on the statements of witnesses recorded u/s 164-A Cr.PC accused Rashid Ahmed and Rafiq Husssain Ss/o Kaki R/o Dagyali were taken into custody from Bajalta More on 22.10.2016. They were investigated with regard to occurrence. On the disclosure of accused Rashid, the shoes of accused were taken and seized as a matter of proof. The Maruti car bearing No.JK02/2655 was also seized. Because accused Rashid was having relations with one girl Mst. Saira and he used to roam with her prior to death of deceased, so she was also investigated. She admitted that accused Rashid used to wander with her in vehicle. Accused Rashid has also given her one SIM card of phone through which she used to talk with him. Accused Rashid used to ask Saira that his marriage has not been performed according to his choice with deceased. Accused Rashid used to hate her from heart.
Accordingly, after completing the investigation, challan was produced against two accused namely Rashid Ahmed and Rafiq Hussain. On 17.01.2017, a supplementary challan against the accused persons namely Arshad Ahmed and Suriya Bibi has also been produced.
BA No. 57/2018 Page 6 of 96. Learned counsel for the petitioner during the course of arguments has stated that there is nothing against her; that eye witnesses have stated nothing against her; that petitioner is women and there is proviso for grant of bail in section 497 Cr.P.C. He has relied upon the judgments of the Supreme Court as well as of this Court in case titled Seema Singh vs Central Bureau of Investigation and another, reported in 2018 (2) Law Herald (SC) 640; in case titled Gulshan Begum vs State and others, reported in 2017 (3) JKJ 315; and in case titled Haji Mohd. Jaffer vs State of J&K, reported in 2014 (1) JKJ 29. Whereas State counsel has opposed the plea of grant of bail.
7. From bare perusal of the record, it reveals that similar application filed in the court below on 08.11.2017, was dismissed on 06.12.2017. Thereafter, one more application filed on 02.03.2018, was again dismissed on 21.04.2018. The first application was dismissed on the ground that court cannot appreciate the witness recorded during trial in detail. Similarly, the second application was also dismissed on the ground that there was no change of circumstances in the case and order of rejection of first application has not been challenged. Perusal of the record further reveals that the prosecution story is based on the circumstantial evidence as well as the eye witnesses. The eye witnesses have already been examined but the trial court has observed that though they have not supported the prosecution case, but court has held that detail appreciation of witnesses cannot be done.
8. Further in the present case, 50 witnesses have been cited and only few witnesses have been examined. The law is very clear that once BA No. 57/2018 Page 7 of 9 the person charge-sheeted under Section 302 RPC he cannot be granted bail in an ordinary manner and only after appreciating the evidence of some of the witnesses. The case is based upon direct as well as circumstantial evidence. The conviction in serious offences like murder case, can be based upon the statement of one witness or upon chain of circumstance, if it inspires confidence of court. Although there is proviso in section 497 Cr.P.C for grant of bail to women, but that too is not absolute; it depends upon facts of each case; a general line cannot be drawn that in every case where accused is women, even in heinous offence, she is entitle for bail. The general impact on society has to be kept in mind while granting bail in murder case. Because offence of murder is an offence against the State and State is answerable to the society at large. It is not the case of petitioner, there is nothing against her. Counsel for petitioner has read over certain statements of witnesses recorded during trial, but I am not inclined to appreciate the statements in detail.
9. Apex Court in CRIMINAL APPEAL NO.1175 of 2018 Arising from SLP (Criminal) No. 5440/2017) in case title The State of Orissa vs Mahimananda Mishra on 18 September, 2018, reported in 2018 0 Supreme (SC) 890 has held as under:-
"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 BA No. 57/2018 Page 8 of 9 an application for bail, the Court must take into account certai n 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. (See 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."
10. In view of above discussion, this petition is dismissed.
(Sanjay Kumar Gupta) Judge Jammu:
30.11.2018 Vijay BA No. 57/2018 Page 9 of 9