Jammu & Kashmir High Court
Rajesh Pandoh vs State Of Jammu And Kashmir Through Sho ... on 2 June, 2021
Bench: Tashi Rabstan, Javed Iqbal Wani
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
Pronounced on: 02.06.2021
CrlM No. 927/2020 in
CrLA(D) No. 40/2019
Rajesh Pandoh
.....Applicant(s)
Through: -
Mr. P. N. Raina, Sr. Advocate with
Mr. J. H. Hamal, Advocate.
V/s
State of Jammu and Kashmir through SHO P/S Udhampur and Anr.
.....Non-Applicant(s)
Through: -
Mr. Raman Sharma, AAG.
CrLM No. 928/2020 in
CrLA(D) No. 41/2019
Ankush Pandoh and Anr.
.....Applicant(s)
Through: -
Mr. Sunil Sethi, Sr. Advocate with
Mr. Vaibhav Gupta, Advocate.
V/s
State of Jammu and Kashmir through SHO P/S Udhampur and Anr.
..... Non-Applicant (s)
Through: -
Mr. Raman Sharma, AAG.
CORAM:
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE.
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.
JUDGEMENT
1. The applicants in the instant applications are seeking bail during the pendency of their respective conviction appeals filed against the common judgement/conviction dated 21.08.2019 and order of sentence dated 22.08.2019 passed by the court of 2 nd Additional Sessions Judge, Jammu, in criminal challan titled as "State of J&K Vs. Ankush Pandoh and others".
Page 2 of 9
CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019
2. The applicant in CrLM No. 927/2020 stands convicted for offences under Section 302, 109, 120-B RPC, having been sentenced to undergo rigorous imprisonment for life under Section 302/120-B RPC and fine of Rs. 10,000/=, rigorous imprisonment of life and fine of Rs. 10,000/= for commission of offences under Section 302/109 RPC. The applicant in CrLM No. 928/2020 stands convicted for offences under Section 302, 452, 34, 120-B RPC 4/25 and 3/25 Arms Act having been sentenced to undergo rigorous imprisonment for life for commission of offences under Section 302 RPC and fine of Rs. 10,000/= with rigorous imprisonment for life and fine of Rs. 10,000/= for commission of offences under Section 302/120-B RPC and a rigorous imprisonment for two years for commission of offences under Section 452 RPC and further a rigorous imprisonment for one year for commission of offences under Section 4/25 Arms Act.
3. Before adverting to the aforesaid applications a brief background of the case as emerging from the record would reveal that on 02.05.2009 one Sanjay Jandyal of Udhampur upon being fired and attacked with Toka by Ankush Pandoh accompanied by two/three more persons sustained serious injuries resulting into his death while en-route to the hospital at Udhampur.
4. An FIR bearing No. 101/2009 dated 02.05.2009 under Section 302, 452 and 34 RPC and under Section 3/25, 2/25 of the Arms Act came to be registered in this regard at Police Station, Udhampur and investigation set into motion. The accused persons namely Page 3 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 Ankush Pandoh, Adil Shah and Rahil Chandel were arrested on 13.05.2009. Accused Rajesh Pandoh and Vimal Singh were also arrested under Section 212 RPC and later on admitted to bail.
5. Investigation of the case had been transferred to Police Station Crime Branch vide order No. 2205 of 2009 dated 19.06.2009 by PHQ whereupon accused Rajesh Pandoh came to be arrested for commission of offences under Sections 302, 109 and 120-B RPC.
6. Upon completion of the investigation, a charge sheet under Section 173 CrPC bearing No. 10 of 2009 against the accused persons came to be initially presented in the court of Chief Judicial Magistrate, Udhampur, for commission of offences under Sections 302, 34, 452, 212, 109 and 120-B RPC and 3/25, 2/25 of Arms Act.
7. The said charge sheet came to be committed by the said court to the court of Principal Sessions Judge, Udhampur vide order dated 11.07.2009 and during its pendency in the said court, pursuant to an order dated 17.05.2010 passed by this court, the same came to be transferred to the court of Principal Sessions Judge, Jammu, whereupon same came to be assigned to the court of 2nd Additional Sessions Judge Jammu vide its order dated 25.05.2010.
8. On 15.09.2009 charges had been framed by the court of Principal sessions Judge Udhampur, against the accused persons namely Ankush Pandoh, Adil Shah, Rahil Chandel and Rajesh Pandoh under Sections 302, 452, 34, 120-B RPC and under Section 4/25 of the Arms Act, Section 302, 452, 34 RPC and Section 3/25 Arms Page 4 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 Act, Sections 302 and 34 RPC, Sections 302, 120-B and 109 RPC respectively, to which the accused persons pleaded not guilty while as accused Vimal Singh under Section 212 RPC came to be acquitted at the stage of Section 342 Cr.PC.
9. Out of total number of 49 cited witnesses in the charge sheet, prosecution produced 34 witnesses and after completion of the trial based on ocular, circumstantial and scientific evidence inasmuch as the evidence lead by the defence, the accused persons came to be convicted and sentenced as above in terms of judgement and order dated 21.08.2019 and 22.08.2019 respectively.
10. Heard appearing counsel for the parties and perused the record.
11. The learned appearing counsel for the applicants while pressing for grant of bail in favour of the applicants during pendency of their respective appeals would argue that the judgement of the trial court besides being perverse and flawed is based on no evidence connecting the accused persons with the commission of the offences they have been convicted and sentenced. Besides, the appearing counsels would seek bail of the applicants on the premise that the accused persons have been under incarceration for the last more than ten years and that since there is no possibility of adjudication/disposal of their respective appeals by this court in near future therefore, the applicants become entitled to grant of bail during pendency of their respective appeals. The learned counsel in this regard referred to orders passed by the Apex court Page 5 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 in case titled as "Javed Ahmad Vs. State of Jammu and Kashmir"
(Criminal Appeal No. 632/2018 dated 15.09.2020), "A. L. Ravi Vs. The State of Karnataka" (Criminal Appeal No. 973/2019 dated 28.08.2019) as also order dated 28.12.2018 passed by this court in case titled as "Mohinder Singh and Ors. Vs State of J&K and Anr".
(IA No. 01/2016 in CRA No. 03/2016), order passed in case titled as "Rayees Ahamd Mir and Anr. Vs. State of J&K and Others" (IA No. 02/2018 in CRA No. 9900004/2017), order dated 25.02.2020 passed in case titled as "Irfan Ahmad Bhat Vs State through Police Station Budgam" (BA No. 173/2018) and order dated 17.12.2019 passed in case titled as "Ravinder Singh Vs. State of Jammu and Kashmir" (IA No. 01/2017 in CRA No. 40/2017. The learned appearing counsels also placed heavy reliance on the judgement of the Apex court passed in case titled as "Akhtari Bi Vs. State of M.P reported in AIR 2001 SC 1528".
12. Per contra, on the other hand learned counsel for the non-
applicants would controvert and resist the bail applications inasmuch as the contentions raised, grounds urged and arguments advanced by the learned counsel for the applicants/accused persons, in line with the objections filed thereto. The learned counsel for the non-applicants would argue that the judgement/conviction and sentence passed by the trial court against the accused persons is well reasoned based on substantial, material, cogent, credible and legal evidence. The learned counsel would further argue that the applicants/accused persons have been Page 6 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 convicted and sentenced by the trial court after a full dressed trial having found the accused/applicant persons involved in the commission of premeditated murder of a young person. The counsel would further argue that in the facts and circumstances of the case the applicants/accused persons are not entitled to the concession of bail on any grounds whatsoever much less on the ground of duration of their incarceration. The learned counsel in support of his case relied upon judgement of the Supreme Court passed in case titled as "Masood Ali Khan vs. State of UP and Others reported in AIR 2009 SC 1465".
13. While adverting to the applications in hand, in the first instance, it would be advantageous and appropriate to refer here under to law laid down by the Apex court in para 35 of the judgement of Apex court passed in case titled as "Preet Pal Singh Vs. State of UP reported in 2020 (8) SCC 645: -
"35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule Page 7 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C."
A conjoint reading of the applications in hand would reveal that in none of the said applications, the applicants have spelt out any cogent ground giving rise to a substantial doubt about the validity of the conviction, so much so there is no credible and plausible contention raised therein the said applications that there is likelihood of unreasonable delay in disposal of their respective appeals.
14. This court though would refrain from undertaking any exhaustive exploration of the merits of the case while considering the instant bail applications in such a depth which would amount to determining the legality or otherwise of the judgement/conviction and sentence of the applicants, however, risking repetition it needs reiteration that the applicants/accused persons have been found guilty of the commission of a heinous offence of murder of a young person in furtherence of their motive, intention and criminal conspiracy upon considering, analyzing and evaluating ocular, Page 8 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 circumstantial and scientific evidence by the trial court after a full dressed trial.
In regard to above a reference here under to para 10 of the judgement of the Apex court titled as "Masood Ali Khan" supra relied upon by counsel for the respondents would be relevant and germane herein wherein at para 10 while referring to the case of "Vijay Kumar V. Narendra and ors.", and "Ram Ji Prasad Vs. Ratan Kumar Jaiswal", it has been held that the court in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, it should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of offence, and the desirability of releasing of accused on bail after they have been convicted for committing the serious offence of murder.
15. The orders of the Apex court as also orders of this court supra relied upon by learned counsel for the applicants qua the ground of duration of incarceration do not lend any support to the cases of the applicants, in that, firstly the said orders may not constitute per-se a precedent in law for the instant applications as the said orders prima-facie seemingly have been passed having regard to the facts and circumstances of the said cases which indisputably are distinct and different from the instant cases and secondly in view of the law laid down by the Apex court in "Akhtari Bi's" case supra Page 9 of 9 CrL A(D) No. 40/2019 & CrLA(D) No. 41/2019 wherein it has been held that if an appeal was not disposed of within a period of five years for no fault of the appellant, such convicts may be released on bail. Admittedly the respective appeals of the applicants herein have been filed in the year 2019 itself and the period of five years has not yet elapsed as such, the applicants cannot be held entitled to the concession of bail at this stage. Even otherwise also assuming the said period of five years was over, yet the bail could not be granted to the applicants as a matter of course by this court during the pendency of their appeals in view of ratio laid down by the Apex court in "Masood Ali Khan's" case supra.
16. Viewed thus, what has been observed, considered and analyzed hereinabove, the applicants in the peculiar facts and circumstance of the case are not held entitled to the grant of bail during pendency of their respective appeals, as such, the applications in hand merit dismissal and are accordingly dismissed.
(Javed Iqbal Wani) (Tashi Rabstan)
Judge Judge
SRINAGAR
02.06.2021
Ishaq