Jammu & Kashmir High Court
Parvaiz Ahmed vs State And Ors. on 9 August, 2017
Bench: Alok Aradhe, Sanjeev Kumar
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MP No. 01/2017 in
Cr. Appeal No. 33/2014, MP No. 109/2014
Date of order: 09.08.2017.
Parvaiz Ahmed Vs. State of J&K
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner/Appellant(s) : Mr. Sunil Sethi, Sr. Advocate with
Mr. Waheed Choudhary, Advocate.
For the Respondent(s) : Mr. Asheesh Singh Kotwal, Dy. AG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
`
MP No. 01/2017
This is an application for suspension of sentence and for grant of bail in respect of appellant Nos. 1 and 2.
2. According to the prosecution story, on 22.10.2011, at about 8 a.m, the appellants formed an unlawful assembly with a common intention of committing murder of the deceased, namely, Mst. Shameem Akhter, entered into the kitchen of her sister, caught hold, assaulted and caused injury to her. It is alleged that the accused, Parvez Ahmed kicked on her belly, and then threw her down from the kitchen as a result of which she died, whereafter all the accused persons put some poisonous substance in her mouth and cried by saying that the deceased had consumed poison.
3. The deceased thereafter was brought to the hospital, where she was declared as brought dead. Thereupon, offences under Section 302, 147 RPC read with Section _________________________________________________________________ MP No. 01/2017 in Cr. Appeal No. 33/2014 Page 1 of 4 2 34 RPC were registered in Police Station, Surankote against appellants.
4. Learned counsel for the appellants submitted that from the material available on record, the only role which has been ascribed against the appellant No. 1 is that he kicked and slapped the deceased, whereas the role which has been ascribed against appellant No. 2, namely, Farooq Ahmed is that he snatched the child from the deceased. It is further submitted that the appellant No. 3, namely, Shameem Ahkter, administered poison to the deceased as a result of which she died. It is further submitted that the appellant No. 3 has already been enlarged on bail by a Bench of this Court vide order dated 09.02.2017. It also submitted that from the statement of PW-15, Dr. Nusrat Bhatti, it is evident that no internal or external injuries have been found on the dead body of the deceased and the appellant Nos. 1 and 2 have been roped in with the aid of Section 34 of RPC and the essential ingredients to the applicability of the provision under Section 34 RPC are completely lacking in the fact situation of the case. It is also submitted that appellant Nos. 1 and 2 are in jail for the past more than six years and they are entitled to be enlarged on bail.
5. On the other hand, learned Deputy Advocate General submitted that from the statement of PW Nos. 2 and 3, the motive and intention of committing the murder of the deceased is proved as the husband of the deceased wanted to contract the second marriage. It also submitted that by the conduct of appellants, the ingredients of Section 34 RPC are fulfilled in the fact situation of the case, therefore, appellants are not entitled to grant of bail.
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6. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the perusal of the record, it is evident that lead role, which has been ascribed by appellant No. 1, is that he kicked and slapped the deceased, whereas the appellant No. 2 snatched the child from the deceased. It is pertinent to note that no overt act has been attributed to appellant Nos. 1 and 2, while the poison was being administered by appellant No. 3 to the deceased. It is also pertinent to mention here that though PW-11 Shaheen Akhter had stated that all five accused persons covered the deceased with the blanket kept in the room. However, the aforesaid statement stands contradicted by the evidence of the Investigating Officer namely, PW-17 Kamal Din, who stated that appellant No. 1, Parvez Ahmed gave a heavy kick on the abdomen of the deceased and threw her from the kitchen as a result of which she died and thereafter some poisonous substance was put into her mouth. It is evident from the evidence of the PW-15, Dr. Nusrat Bhatti, that no external or internal injury detected on the body of the deceased.
7. For the aforementioned reasons and taking into account period of incarceration of the appellant Nos. 1 and 2, we deem it appropriate to enlarge them on bail, subject to the following conditions:
a) That appellant Nos. 1 and 2 shall furnish personal bond in the amount of Rs. 50,000/-
each with two sureties of like amount each to the satisfaction of Registrar Judicial of this Court.
b) That they shall not leave the State of Jammu and Kashmir without permission of this Court.
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c) That they shall appear before this Court on each and every date of hearing.
8. Accordingly, MP No. 01/2017 is allowed.
(Sanjeev Kumar) (Alok Aradhe)
Judge Judge
Jammu
09.08.2017
Shivalee
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