Rajeev Sharma Age 34 Yrs. S/O Ramesh vs State Of Jammu & Kashmir Through Sho on 10 November, 2022

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Jammu & Kashmir High Court

Rajeev Sharma Age 34 Yrs. S/O Ramesh vs State Of Jammu & Kashmir Through Sho on 10 November, 2022

1. Petitioners against whom charges have been framed by the Trial Court of 1 st Addl. Sessions Judge Jammu vide it's order dated 10.11.2017 for commission of offences under Sections 302/34RPC in FIR No. 164/2016 registered with Police Station Kanha Chak Jammu lying in judicial custody since their arrest on 29-12-2016 have claimed bails on the grounds, that statements of all the important witnesses have been recorded and only formal witnesses are left and on the basis of evidence which has came on record clearly shows that the offences alleged against petitioners have not made out and they have 2 Bail App No. 142/2019 unnecessarily been dragged in the criminal challan; the trial court is likely to take considerable time to conclude the trial therefore the petitioners be admitted to bails on such terms and conditions have been found just and proper; the bail application filed by petitioners was contested by the prosecution by filing objections and the trial court of 1 st Addl. Sessions Judge Jammu after hearing rival contentions of the parties has passed the order dated 02-08-2019 whereby the bail applications of the petitioners have been dismissed; that the order dated 02-08-2019 passed by the Ld. Trial Court is not sustainable legally as well as factually, it is wrong on the part of the trial court to close appreciation of the evidence and to presume that petitioners are involved in the offence of murder; it is settled position of law that in order to check that there is existence of reasonable doubt against accused persons during trial the trial court may have to look to the evidence to the limited extent of satisfying itself to the existence of reasonable doubt, however, in the instant case the trial court have not looked into the said evidence which has occasioned injustice to the petitioners; there is no nexus of allegations of prosecution and the death of deceased as there is not chain connecting presence of accused with poisoning of the death of deceased; petitioners are languishing in jail and the delay in disposal of the case is violating their fundamental rights of speedy trial guaranteed to the petitioners under the constitution of India; court below has not returned any cogent or convincing finding while rejecting the plea of the petitioners for grant of bail; neither the petitioners have committed any offence nor they are involved in alleged commission of such offence; the basic rule is the "Bail is general Rule" and " Jail is an exception" applies to the case in hand; petitioners are men of repute and have sufficient movable and immovable properties therefore there is no chance of their fleeing away from the jurisdiction of this court as they undertake themselves to appear before the trial court on each and every date of hearing.

2. Respondent No.3 being real brother of deceased Ram Krishan from victim's side on 28-12-2019 filed an application for impleading him as necessary party in the bail application. In terms of order of this court dated 31-12-2019, respondent No. 3 was arrayed as necessary respondent in the instant bail application. Respondents 1,2&3 through their counsel by filing objections inter-alia have opposed the bail on the grounds, that the petitioners and other co-accused took number of opportunities for arguments on charge and 3 Bail App No. 142/2019 discharge which were completed on 09-05-2017 and the file was kept for order by the trial court, but on 25-05-2017 Advocate A.K. Sawhney appeared on behalf of some of the accused and sought time for further arguments on charge and discharge and on 25-08-2017 Sr. Advocate Sh. Sunil Sethi also appeared on behalf of some accused and sought time for arguments which were completed on 23-10-2017, however, the trial court on 10-11-2017 framed charges against all the accused including accused petitioners u/s 302/34 RPC and directed the prosecution to produce witnesses in terms of the calendars fixed. It is contended, that co-accused including petitioners preferred a petition u/s 561 Cr.pc for quashing of the order dated 10-11-2017 framing of charges against all the 5 accused, however, Hon'ble High Court vide its order dated 03-07-2018 dismissed the petition filed by all the accused persons u/s 561 Cr.pc and the original file was received by the trial court on 11-07-2018 whereas prosecution was directed to produce it's evidence, so far prosecution out of total 49 witnesses to prove the allegations against accused has examined as many as 20/21 witnesses including both star witnesses of the case namely, PW-5 Prem Chand (f/o deceased) and PW-2 Ved Pal (b/o deceased), the delay if any in recording statements of prosecution witnesses is due to non-availability of defence counsel and on some occasions due to non- production of accused by the jail authorities. It is further contended, that material witnesses viz; witnesses to disclosure statement of accused and recovery made pursuant to that, one Doctor who examined the deceased alongwith FSL report, two brother-in-laws of the deceased who are witnesses to material circumstance and recoveries and members of the SIT (Special Investigation Team) who conducted investigation are yet to be recorded, prosecution has already brought on record sufficient evidence to prove offence committed by the petitioners and also proved last seen circumstance by cogent evidence against appellants; petitioner's assertions in the bail application that there is no nexus of the allegations and death of deceased and there is no chain connecting presence of accused with poison and death of deceased are again false one, because prosecution has brought on record sufficient evidence in the form of ocular evidence and medical evidence that the death in the case in hand is direct outcome of offence committed by petitioners and other accused as the death of deceased took place in the company of applicant/accused and co-accused as well as the deceased has injuries on his body. It is moreso contended that there is no delay on part of 4 Bail App No. 142/2019 the prosecution in examining the witnesses and the trial court has rightly dismissed the application of the petitioners and the co-accused.

3. Sh. Sunil Sethi Ld. Sr. Advocate for petitioners/accused has sought their enlargement on bails by vehemently projecting arguments, that for the last 6 years petitioners alongwith two (2) other co-accused are languishing in jail for no fault of theirs and till date out of total listed 49 prosecution witnesses only 25 prosecution witnesses have been examined and if applying the same speed of the trial, it will consume another 5/6 years to get the prosecution witnesses examined which would amount to denial of speedy justice to the petitioners and violation of their fundamental rights. It is argued, that PW-2 Ved Pal (brother of deceased) & PW-5 Prem Chand (father of deceased) are the two witnesses to the "last seen theory" and none of them in their depositions before the trial court have implicated the petitioners and the co- accused with the alleged commission of crime, the whole of prosecution case resting upon circumstantial evidence of last seen theory and other circumstantial evidence like disclosure statement of A-1 Rajeev Sharma regarding the hard object by which injuries were inflicted on the neck of deceased and the recovery of sports shoes pursuant to such disclosure statement are the missing links in the chain of events, the links in the chain are incomplete to prove the incriminating circumstance against accused persons. It is further argued, that one of the prosecution witnesses viz; PW-3 Sushma Devi has not proved the motive of crime, PW-6 Ajit Sharma has turned hostile, while the other medical witnesses viz; PW-37 Dr. Subash Abrol (Surgeon posted at GMC Jammu), PW-38 Dr. Varinder Mohan Rana (Pathologist GMC Jammu), PW-39 Dr. Vaishali Kotwal (Assistant Professor Dept. of Medicine GMC Jammu), PW-40 Dr. Amit Thakur (Assistant Professor Dept. of Orthopedics GMC Jammu) & PW-41 Dr. Anil Mahajan (MO, Dept. of Forensic Medicine & Toxicology) who are witnesses to the postmortem report of the deceased have categorically deposed that injuries mentioned on page No. 2&3 of the postmortem report are ordinarily not sufficient to cause death immediately, but the cause of death of deceased is due to consumption of poison which is not the alleged case against the petitioners as none of the prosecution witnesses examined so far have led any credible evidence that petitioners/accused have administered poison to the deceased. It is vehemently argued, that though giving of elaborate reasons/marshaling of evidence with the point of view of possibility of 5 Bail App No. 142/2019 conviction or otherwise may not be necessary in the bail application, however, the order of the trial court dated 02-08-2019 rejecting the bail application of the petitioners dehors reasoning cannot sustain as the non- speaking order is an instance of violation of principle of natural justice to the petitioners, moreso, the remaining un-examined 24 witnesses of the prosecution are only formal in nature, whereas the evidence recorded by the trial court so far does not connect/link the petitioners with alleged commission of crime. Reliance has been placed on, (i) 2022 Legal Eagle (J&K) 693 [State of J&K Versus Pyar Singh] & (ii) Judgment of Supreme Court rendered in Criminal Appeal Nos. 361-362 of 2018 [Chotkau-- Appellants versus State of Uttar Pradesh].

4. Sh. Rohit Sharma, Ld. Special PP for the respondents, per-contra, has strenuously opposed the bail on the grounds, that PW-2 Ved Pal (b/o deceased) & PW-5 Prem Chand (f/o deceased) are the two witnesses to the last seen theory, as both of them have deposed before the trial court that the petitioners and co-accused took deceased with them to attend a marriage party, but the accused persons returned the deceased in their vehicle in an unconscious manner, the postmortem report depicts that deceased suffered hematoma on the lower side of his skull/neck which are serious injuries and moreso the FSL report clearly shows that deceased died to consumption of poison. It is argued, that in terms of last seen theory applicable to the case in hand, as mandated under section 106 of the Evidence Act, the burden of proving the fact that deceased Ram Krishan who was in the company of accused and what happened to him, is especially within the knowledge of petitioners/accused, other material witnesses of the prosecution viz; PW-18 Constable Ajay Kumar, PW-22 Sunil Sharma, PW-23 Sgct. Jatinder Singh who are witnesses to the disclosure statement and recovery are yet to be examined, while PW-19 Gokul a circumstantial witness in regard to the hotel record where as per prosecution story accused have administered poison to the deceased is yet to be examined. It is further argued, that there is no delay on part of the prosecution in concluding the trial as much of the time has been consumed by the accused in challenging the order of framing of charges and moreso for complete 2 years due to COVID-19 restrictions the trial got hampered, therefore, no oblique motives can be attributed to the prosecution to delay the trial. It is vehemently argued, that by the catena of judgments of various High Courts and Supreme Court of India, at the stage of granting of 6 Bail App No. 142/2019 bail in non-bailable offence, the court can go only into question of prima- facie case established for granting bail, it cannot go into the credibility and reliability of the witnesses put up by the prosecution, in offences of serious nature like murder cases where an accused is enlarged on bail there is every possibility that he may influence the witnesses as he is facing trial in an offence punishable with death or imprisonment for life, the nature and gravity of offence and its impact on the society is also to be considered in the case in hand, moreso, the witnesses of the last seen theory and the doctors viz; PW- 37 Dr. Subash Abrol (Surgeon posted at GMC Jammu), PW-38 Dr. Varinder Mohan Rana (Pathologist GMC Jammu), PW-39 Dr. Vaishali Kotwal (Assistant Professor Dept. of Medicine GMC Jammu), PW-40 Dr. Amit Thakur (Assistant Professor Dept. of Orthopedics GMC Jammu) & PW-41 Dr. Anil Mahajan (MO, Dept. of Forensic Medicine & Toxicology) examined so far have not exonerated the petitioners from complicity of the crime, while as out of the 24 prosecution witnesses yet to be examined some of them are most material witnesses and there being every possibility of them being threatened/win over by the accused, the bail application deserves outright dismissal. Reliance has been placed on, (i) 2021 Legal Eagle 928 [Brijmani Devi Versus Pappu Kumar & Anr.], (ii) 2021 Legal Eagle 407 [Sunny Choudhary Versus State of J&K], (iii) 2021 Legal Eagle 551 [Mohammad Ibrahim Dar Versus Union Territory of Jammu & Kashmir] & (iv) 2022 Legal Eagle 1042 [Nitu Kumar Versus Gulveer & Anr.].

5. I have heard Ld. Counsel for petitioners and Ld. Special PP for respondents. I have gone through the evidence recorded by the trial court so far and have also thoroughly scanned the ratios of the judgments relied by Ld. Counsel for the parties.

6. Hon'ble Supreme Court in a case law titled Kalyan Chandra Sarkar V. Rajesh Rajan @ Pappu Yadav and Anr. (2004) 7 SCC 528 while succinctly laying down broader principles for grant or refusal of bail in non- bailable offence in para 11 of the judgment observed as under:-

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-

7 Bail App No. 142/2019

application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

c) Prima facie satisfaction of the court in support of the charge"

7. Applying the principles of law enunciated in Kalyan Chandra Sarkar's case (Supra) to the facts of the case in hand, Hon'ble Supreme Court in a case law titled Brijmani Devi Versus Pappu Kumar & Anr. (2021 Legal Eagle

928) relied by Ld. Counsel for respondents rejected the bail of accused indicted for commission of offence of murder u/s 302/34 IPC on the ground that High Court lost sight of vital aspect of the case and passed very cryptic order granting bail to the accused.

In 2021 Legal Eagle 407 [Sunny Choudhary Versus State of J&K] relied by Ld. Counsel for respondents, a Coordinate Bench of this Court while rejecting the bail to the accused for commission of offences u/ss 302/460/148/149/427/120-B/109 RPC and observing that at the stage of granting bail during trial detailed examination of evidence and merits of the case are not to be considered and moreso the court cannot go into the question of credibility and reliability of the witnesses, in paras 10 &11 of the judgment held as under:-

10. The law is well settled that the court should refrain from appreciating the evidence, while considering the bail application. Further the Apex Court in Satish Jaggi v. State of Chhattisgarh, reported in (2007) 11 SCC 195 has held as under:

"12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges leveled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability 8 Bail App No. 142/2019 of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amount to the regular trial pointing out the deficiency and reliability/credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain."

11. There are serious allegations against the petitioner of hatching a conspiracy for committing murder and arranging the killers in pursuance of the said conspiracy, At this stage, it cannot be determined that the allegations are either false or not true as number of other witnesses are yet to be examined and there is every chance that if the petitioner is enlarged on bail, he may influence the witnesses as the petitioner is facing trial for commission of offence, which is punishable with death or imprisonment to life. So far as delay in the conclusion of trial is concerned, perusal of record shows that the trial court has conducted the effective proceedings and even to secure the presence of the complainant-PW-1, trial court has resorted to even coercive process. It requires to be noted that for the last two years, the courts have been functioning in restricted node and obviously some delay has caused due to Covid-19 pandemic in conducting the trial of the case.

In 2021 Legal Eagle 551 [Mohammad Ibrahim Dar Versus Union Territory of Jammu & Kashmir] relied by Ld. Spl. PP for respondents, a Coordinate Bench of J&K High Court again while rejecting bail to the accused facing trial in offence u/s 302 RPC and observing that court should not render any finding regarding the credibility and evidentiary value of the witnesses at the stage of considering application for grant of bail, in paras 13,14,15 & 16 held as under:-

13. When the application in hand is taken for consideration, it contains the statements of witnesses, which, according to counsel for applicant, have been reproduced so that this Court would appreciate the same while considering the application for bail. It is made clear here that the nature and gravity of the offence and its impact on the democratic fabric of the society is to be considered and there should not be observations and findings on the credibility and the evidential value of the witnesses at the stage of considering application for grant of bail. In the event any observation and finding are made about the statements of witnesses, reproduced by applicant in the application in hand, same would virtually amount to discussing the whole case, which is subject- matter of final stage of the trial.

14. Since in the present case, the trial is in progress and if any finding or view is made by this Court while taking into account the statements of the witnesses or for that 9 Bail App No. 142/2019 matter any finding on their credibility and evidential value at the stage of granting or refusing bail, it would seriously prejudice Bail App no.95/2020 the prosecution case. The allegations against accused are serious and same cannot be determined that the allegations leveled against accused are either false or true as a number of other witnesses are yet to be examined and there is every chance that if applicant is enlarged on bail, he may influence the witnesses as he is facing trial for commission of offence, which is punishable with death or imprisonment for life. Reference in this regard is made to Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and anr., (2004) 7 SCC 528; State of U.P. through CBI vs. Amarmani Tripathi, (2005) 8 SCC 21; Prahlad Singh Bhati vs. NCT, Delhi and anr, (2001) 4 SCC 280; Ram Govind Upadhyay vs. Sudarshan Singh and ors., (2002) 3 SCC 598; State of Maharashtra vs. Ritesh, (2001) 4 SCC 224; Panchanan Mishra vs. Digambar Mishra and ors., (2005) 3 SCC 143;

Vijay Kumar vs. Narendrea and ors, (2002) 9 SCC 364; Anwari Begum vs. Sher Mohammad and anr., (2005) 7 SCC 326; Prasanta Kumar Sarkar vs. Ashish Chatterjee and ors., (2010) 14 SCC 496;

and Ravindersingh vs. State of Gujarat (2013) 12 SCC 446.

15. In the above backdrop, the judgments relied upon by learned counsel for applicant do not render any help to the case of applicant as being distinguishable in facts and circumstances of the present case. Resultantly, order impugned does not warrant any interference.

16. For the foregoing reasons, this is not a fit case for grant of bail. Bail application/petition along with connected CM(s) is, accordingly, dismissed.

In 2022 Legal Eagle 1042 [Nitu Kumar Versus Gulveer & Anr.] relied by Ld. Spl. PP for respondents, Hon'ble Supreme Court while cancelling the bail granted to a murder accused u/s 302 IPC and observing that gravity and seriousness of the offence is a relevant consideration for grant of bail in paras 2.2 &3 held as under:-

2.2 From the aforesaid it can be seen that nothing has been discussed by the High Court on the role attributed to respondent No. 1 accused and his overt act in commission of the offence. The High Court has not appreciated that there is an eye witness, who has categorically stated that respondent No. 1 caught hold of the deceased. The High Court ought to have appreciated that if respondent No. 1 would not have caught hold of the deceased it would not have been possible for the co accused Shekhar to cause injuries on the deceased. Therefore, the High Court ought to have appreciated that the role 10 Bail App No. 142/2019 attributed to respondent No. 1 can be said to be very serious like co-accused Shekhar. As per the settled position of law, gravity and seriousness of the offence is a relevant consideration for the purpose of grant of bail. The High Court was required to consider the gravity and the seriousness of the offence and the nature of the allegations against respondent No. 1 accused. Under the circumstances, the impugned judgment and order passed by the High Court releasing respondent No. 1 on bail for the offence punishable under Section 302 of IPC is unsustainable.

3. In view of the above and for the reasons stated above, the present appeal succeeds.

The impugned judgment and order passed by the High Court releasing respondent No. 1 accused on bail in Case Crime No. 80/2021 of Police Station Rohata, District Meerut for the offence punishable under Section 302 IPC is hereby quashed and set aside.

8. Ratios of the judgments (Supra) relied by Ld. Counsel for respondents lay down an invariable rule of law, "that when the trial of a case in progress, gravity and seriousness of offence is relevant factor and when number of material witnesses are yet to be examined and if any finding or view is made by the court while taking into account statements of witnesses or for that matter any finding on their credibility and evidentiary value at the stage of granting or refusing bail it would seriously prejudice the prosecution case". Ratios of the judgments (Supra) squarely apply to the facts of the case in hand and the arguments propounded by Ld. Counsel for respondents. The gravamen of the prosecution allegations against petitioners read as under:-

"that on 11-11-2016 at 06.30 am Police Station Kanachak received an information through PCR Jammu that one person namely Ram Krishan @ Kuchu S/o Prem Chand R/O Flora Nagbani Jammu was brought at GMC Jammu for medical treatment, however, he has been declared brought dead by the Doctors and the dead body of the deceased has been kept at GMC Mortuary Room. As death of the deceased was found under suspicious circumstances, so proceedings under Section 174 Cr.pc were initiated by the police. Postmortem of the deceased was conducted by the board of doctors. During the postmortem of the deceased all the proceedings were video graphed and photographed through the photographer of Crime Branch. Statement of the witnesses were recorded under Section 175 Cr.pc. From the statements of the witnesses, it was found that on 07-11-2016 in the evening deceased Ram Krishan had gone to attend a marriage party of one Sudhama with accused persons namely Vikash Sharma, Sunil Sharma, Rajesh Kumar and one Amit Sharma (prosecution witness) and consumed alcohol on the way, thereafter, they had gone to a bar and there too all of them consumed 11 Bail App No. 142/2019 alcohol except Amit Sharma, who left the bar with his uncle. After consuming alcohol, scuffle took place between the deceased and accused Rajeev Sharma. During investigation, it was revealed that accused Rajeev Sharma having enmity with Ved Pal, the elder brother of the deceased over cable business and also accused namely Vinod Kumar was having enmity with the deceased, because deceased was having love affair with the daughter of accused Vinod Kumar. As such, said Rajeev Sharma and Vinod Kumar alongwith other accused took the deceased in their cars towards Thathri and at about 11.55 pm at some lone place attacked the deceased on his neck with some blunt object causing injuries to him and thereafter all the accused beat the deceased with fists and blows, thereby, causing death of the deceased, accordingly, on completion of investigation offence u/s 302/34 RPC stood established against all the 5 accused".

9. From the record, it appears that the trial court of 1st Addl. Sessions Judge Jammu vide it's order dated 10-11-2017 has framed charges against petitioners and other two co-accused namely Vikash Sharma S/O Kishori Lal and Sunil Sharma S/O Madan Lal for commission of offence u/s 302/34 RPC. All the accused have pleaded not guilty to the charges and have claimed trial. Out of total 49 prosecution witnesses, till date, as many as 25 witnesses including witnesses of "last seen theory" viz; PW-2 Ved Pal (brother of deceased) & PW-5 Prem Chand (father of deceased) have been recorded and none of them have turned hostile. Out of the remaining 24 witnesses unexamined so far, PW-18 Constable Ajay Kumar, PW-22 Sunil Sharma & PW-23 SGCT Jatinder Singh are the witnesses to the disclosure statement made by A-1 Rajeev Sharma and recovery thereof, and one more witness PW-19 Gukal is circumstantial witness to prove the hotel record. It is apt to reiterate here, that Medical witnesses viz; PW-37 Dr. Subash Abrol (Surgeon posted at GMC Jammu), PW-38 Dr. Varinder Mohan Rana (Pathologist GMC Jammu), PW-39 Dr. Vaishali Kotwal (Assistant Professor Dept. of Medicine GMC Jammu), PW-40 Dr. Amit Thakur (Assistant Professor Dept. of Orthopedics GMC Jammu) & PW-41 Dr. Anil Mahajan (MO, Dept. of Forensic Medicine & Toxicology) examined so far have not exonerated the petitioners from complicity of the crime. In 2009 (II) SLJ 681 (Gandarb Singh V/s State), Hon'ble J&K High Court while rejecting bail to the accused indicted for commission of offence of murder u/s 302 RPC, in para 7,8,9 & 10 held as under:-

"(7) In order to decide this bail application, it is important to look into the evidence, which has come on record. Grant of bail at this stage depends upon the involvement of the accused in the same offences, which are reflected from the statement of witnesses, who have been examined. It is also 12 Bail App No. 142/2019 important that any observation made which appreciating the evidence will have direct affect on the outcome of the trial.

However, it is not in dispute that court has power to grant bail during the pendency of the trial. The only question which requires to be examined by this court at this stage is that what is the evidence which has come against the accused (8) After scanning through the evidence which has come on record more particularly the statement of Sanjeev Kumar, I do not find at this stage that the petitioner is entitled to bail. (9) The accused can be granted bail only, if evidence, which come on record, overwhelmingly points towards non-involvement of the accused in the case. Where there are two views possible, the court must ordinarily refrain from exercising its powers under Section 498 Cr.pc while granting the bail in such cases.

(10) Coming to the case in hand, I do not find the accused entitled to bail". Ratio of judgment (supra) makes the legal position abundantly clear, that bail can be granted to an accused indicted for commission of offence of murder u/s 302 RPC only if the evidence on record does not point towards the involvement of accused in the case."

Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that the bail can be granted to accused indicted for commission of offence of murder u/s 302 RPC only if the evidence on record does not point towards involvement of the accused in the case. There are serious allegations against the petitioners and other co-accused for committing murder of one Ram Krishan. At this stage, it cannot be determined that the allegations are either false or not true as number of other material witnesses aforementioned are yet to be examined by the prosecution and there is every possibility that if the petitioners are enlarged on bail they may influence the witnesses as the petitioners are facing trial for commission of offence of culpable homicidal amounting to murder which is punishable with death penalty or imprisonment for life. Law is no longer res-integra that gravity and seriousness of offence is a relevant consideration for grant or refusal of bail. In the case in hand, the trial is in progress and if any finding or view is expressed by this court regarding the credibility and evidentiary value of the witnesses examined so far it would seriously prejudice the prosecution case. It requires to be noted, that for the last two years the courts have been functioning in restricted mode and obviously some delay might have been caused to the trial of the case due to COVID-19 pandemic restrictions which delay by no standards can be attributed to the prosecution. The judgments relied by Ld. Counsel for petitioners viz; (i) 2022 Legal Eagle (J&K) 693 [State of J&K Versus Pyar 13 Bail App No. 142/2019 Singh] & (ii) Judgment of Supreme Court rendered in Criminal Appeal Nos. 361-362 of 2018 [Chotkau--Appellants versus State of Uttar Pradesh] in view of the facts of the case in hand are distinguishable as both the judgments relate to the acquittal of accused and setting aside the conviction. It is reminded that as the petitioners and other co-accused are facing trial for the last almost 6 years, the trial court is directed to speed up the examination of prosecution witnesses as expeditiously as possible and fix weekly calendars for examination of prosecution witnesses with the directions that the defence Counsel shall remain available on the calendars fixed so that it is made possible to conclude the trial within shortest possible time.

10. In the above backdrop, and for the foregoing reasons, I do not find the petitioners entitled to bail at this stage, as the bail application is pre-mature, accordingly disallowed, rejected and dismissed.

11. Disposed of alongwith connected CMPs.

(MOHAN LAL) JUDGE Jammu:

10.11.2022 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

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