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Jammu & Kashmir High Court

Gian Singh vs State Of J&K; on 14 September, 2017

Bench: Alok Aradhe, B. S. Walia

        HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

MP No.65/2013 in Cr. Appeal No.37/2013
Confirm. No.18/2013

                                                         Date of order:14.09.2017
                     Gian Singh           Vs.          State of J&K
Coram:
        Hon'ble Mr. Justice Alok Aradhe, Judge
        Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For Appellant(s)   :Mr. Sunil Sethi, Sr. Adv. with Mr. Mohsin Bhat, Adv.
For respondent (s) :Mr. Sanjeev Padha, GA vice Mr. Asheesh Singh Kotwal, Dy.A.G.

Per : Aradhe-J Heard on MP No.65/2013, an application for suspension of sentence and for grant of bail.

Learned Senior counsel for the appellant submits that the alleged incident has taken place on 08.07.2009 and the conviction of the appellant is based on the testimony of two eye witnesses, who were the children of the deceased namely Deepa and Vinay as well as the dying declaration. Learned Senior counsel further submitted that though the statement of Vinay i.e. son of the deceased was got recorded by the police authorities under Section 164-A of Cr.P.C. after a period of one month on 08.08.2009 from the date of incident, yet the statement under Section 164-A of Cr.P.C. was not recorded of another eye witness namely Deepa i.e., daughter of the deceased. It is also pointed out that there is discrepancy with regard to the manner of incident which has taken place in the dying declaration as well as the version of the eye witness namely Deepa i.e., daughter of the deceased. It is further submitted that the son of the deceased namely Vinay has not supported the prosecution case. It is also pointed out that the dying declaration was not signed by the deceased even though her hands were not burnt and the same were not recorded in presence of the Magistrate though the Magistrate was MP No.65/2013 in Cr. Appeal No.37/2013 Page 1 of 3 available at a distance of 20 meters. It is also submitted that after recording the dying declaration, the deceased survived for six more days, however, no attempt was made by the prosecution to record the statement of the witness by the Magistrate.

Learned GA has opposed the prayer for grant of bail on the ground that there is a sufficient material on record to connect the appellant with the alleged offence.

We have considered the submissions made by learned counsel for the parties and have perused the record.

The prosecution has prima facie failed to explain as to why the statement of another eye witness namely Deepa, who is the daughter of the deceased, was not recorded under Section 164-A of Cr.P.C. It is also pertinent to mention here that the eye witness namely Vinay, who is the son of the deceased and whose statement was recorded under Section 164-A of Cr.P.C., has not supported the prosecution case. Besides that, there is discrepancy with regard to the manner of incident which has taken place in the dying declaration as well as the version of the eye witness namely Deepa i.e., daughter of the deceased. The dying declaration has also not been recorded by the Magistrate even though the Magistrate was available at a distance of 20 meters and no attempt was made by the prosecution for getting dying declaration recorded even though the deceased survived after recording of the dying declaration for period of six days.

It is made clear that the observations made with regard to merits of the case have been made only for the purposes of deciding the application for bail.

For the aforementioned reasons, we are inclined to suspend the sentence and enlarge the appellant on bail, subject to the following conditions:-

a) That the appellant shall furnish personal bond in the amount of Rs.50,000/-

with two sureties of like amount to the satisfaction of Registrar Judicial of this Court;

b) That the appellant shall not leave the territorial jurisdiction of the State of Jammu and Kashmir without permission of this Court; &

c) That he shall appear before this Court on each and every date of hearing.

Accordingly, MP No.65/2013 is allowed.

                                         (B. S. Walia )          (Alok Aradhe)
                                                Judge                   Judge
Jammu
14.09.2017
Ram Murti




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