Jammu & Kashmir High Court
Gulshan Beghum And Anr vs State Of J&K; And Ors on 9 March, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 10
Supplementary
List-2
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRA No.21/2017, MP No.1/2017
c/w
CONF No.7/2017
Date of order: 09.03.2018
Gulshan Beghum and anr v State of J&K and ors
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Appellant(s) : M/s Mohd Arif & Mehmood Rizvi, Advocates.
For the Respondent(s) : Mr Sanjeev Padha, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Badar Durrez Ahmed, CJ (Oral)
1. This is an application seeking suspension of sentences and release on bail insofar as the two applicants are concerned. Both the applicants have been convicted under Section 302 RPC for having committed the murder of Bashir Ahmed Khan. The applicant No. 1 Gulshan Beghum is the widow of Bashir Ahmed Khan and the applicant No. 2 Ghulam Hassan Mir is the brother of Gulshan Beghum.
2. The learned counsel for the applicants submitted that both the applicants have been in custody for over 7 years and one month. He submitted that the case of the prosecution was that Gulsham Beghum had developed illicit relations with the third accused namely Rajinder Kumar alias Sonu. According to the prosecution, the deceased had come to know of this relationship and, therefore, the three accused conspired to get rid of the deceased. It is also the case of the prosecution that the deceased was administered poison (Aluminium Phosphide) mixed with his cold drink, CRA No.21/2017 Page 1 of 3 whereupon he became unconscious and thereafter he was killed by virtue of hanging with a nylon rope, in which all the three accused were complicit.
3. The learned counsel for the applicants also submits that a purported eye witness PW Zakir Hussain, who was one of the minor sons of the deceased and the applicant No. 1, has been cited by the prosecution as an eye witness. But his first statement was recorded 120 days after the incident. He also submitted that the said witness being a child-witness, was influenced by his paternal grandparents with whom he was residing ever since the death of the deceased.
4. The learned counsel for the applicant also submitted that the trial court acquitted the accused Rajinder Kumar as they found that there was no evidence of any conspiracy or of any illicit relation between him and Gulshan Beghum. Thus, according to the learned counsel for the applicant the basis and foundation of the case disappeared. Yet the applicants have been convicted under Section 302 RPC. He also submitted that even the actual cause of death has not been ascertained. The death could be homicidal as well as suicidal. He submitted that the Doctor who conducted the postmortem examination could not be produced because he had died in the meanwhile. Even the postmortem examination report has not been proved by any other person acquainted with his hand writing and signature. Therefore, the postmortem examination report cannot be looked into. That being the case, there is no opinion from any medical expert as to the cause of death. Insofar as the viscera report is concerned which was provided by FSL, PW Dr. Pawan Abrol has indicated that traces of Aluminium Phosphide were found in the viscera sample that was sent to him. However, according to the applicant this by itself does not negate the theory of suicide.
5. He, therefore, submitted that in view of the above and other reasons which have been taken up by way of defence, the applicants have an excellent CRA No.21/2017 Page 2 of 3 chance of succeeding in the accompanying appeal. They have already spent over 7 years and 1 month each in jail and since the appeal is of 2017, it is not likely to be heard in the near future as there are other appeals of greater vintage which are pending before this Court.
6. Consequently, he submitted that the applicants be released on bail and their sentences be suspended during the duration of pendency of the appeal.
7. Mr Padha appearing on behalf of the State placed reliance on the trial court decision as also on the testimony of PW Zakir Hussain and that of Dr. Pawan Abrol, to submit that it was a clear cut case of poisoning at the hands of the accused/applicants. He said that there was no error in the said decision of the trial court which could warrant any interference and therefore, the question of granting bail and suspending the sentences of the applicants does not arise.
8. Considering the totality of circumstances and particularly the fact that the applicants have already been in custody for over 7 years and 1 month each and there is little likelihood of the appeal being heard at an early date because there are older appeals pending before this Court, we feel that this is a fit case in which the applicants ought to be released on bail on furnishing bonds in the sum of Rs. 50,000/- each with two sureties each of the like amount and their sentences be suspended for the duration of the appeal. It is so ordered. The applicants shall, however, remain present on every date of hearing in the appeal and they shall not leave the state of Jammu and Kashmir without the permission of this Court.
9. The application stands allowed as above.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
09.03.2018
Pawan Angotra.
CRA No.21/2017 Page 3 of 3