Jammu & Kashmir High Court - Srinagar Bench
Mohammad Akram Wani & Ors vs Ut Of J&K on 18 August, 2021
Bench: Chief Justice, Sanjay Dhar
Sr. No.55
After Notice
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
CrlM No.290/2021
In
CrlA(D) No.04/2021
c/w
CrlA(D) No.07/2021
CrlM No.336/2021
MOHAMMAD AKRAM WANI & ORS
...APPLICANTS/APPELLANT(S)
Through:- Mr. S. T. Hussain, Sr. Advocate, with
Ms. Nida Nazir, Advocate.
Vs.
UT OF J&K ...RESPONDENT(S)
Through:- Mr. Mir Suhail, AAG.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
ORDER
18-08-2021 Per Sanjay Dhar 'J'
1) Instant application for grant of bail has been moved on behalf of appellants who stand convicted of various offences in terms of judgment dated 19.02.2021 passed by learned Additional Sessions Judge, Pulwama. During the course of hearing, learned Senior counsel appearing for the appellants has submitted that presently he is pressing the application for grant of bail only to the extent of appellants MOHAMMAD ALTAF BHAT 2021.08.24 10:35 Mohammad Akram Wani and Mst. Zooni. I attest to the accuracy and integrity of this document
CrlM No.290/2021 Page |2
2) The brief facts giving rise to the filing of this application are
that on 30.06.2012, Police Station, Awantipora, on the basis of an information that one Feroz Ahmad Wani (hereinafter referred to as the deceased) has been done to death by his father, appellant Mohammad Akram Wani, his step mother, appellant Mst. Zooni, his step brother, appellant Mohammad Ashraf and some other relatives, registered an FIR bearing No.96 of 2012 for offences under Section 302, 34 RPC, whereafter investigation of the case was set into motion. After conducting the investigation, the police found that on 29.06.2012 at about 8.30 P.M, appellant Mohammad Akram Wani, his son, appellant Mohammad Ashraf Wani, his wife, appellant Mst. Zooni, his daughter-in-law, Mst. Sakeena and his nephew, appellant Ishfaq Ahmad Wani, assaulted the deceased with axe and club in his residential house, as a result of which the deceased breathed his last whereafter the above named accused packed the dead body of the deceased in gunny bags and threw it away in a dry well at a place known as Kanildar. Offences under Section 302, 149, 120-B RPC were found established against the above named accused and a charge sheet came to be filed before the Court.
3) After framing of charges, the accused were put to trial by the learned trial court and after a full-dressed trial, the accused/appellants Mohammad Akram Wani, Mohammad Ashraf Wani and Ishfaq Ahmad Wani were found guilty of offences under Section 302, 120-B, 201 RPC whereas appellant Mst. Zooni was found guilty of offence MOHAMMAD ALTAF BHAT 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 Page |3 under Section 201 RPC in terms of the judgment dated 19.02.2021. Accused Sakeena has been acquitted of the charges.
4) Vide order dated 25.02.2021, passed by the learned trial court, appellants Mohammad Akram Wani, Mohammad Ashraf Wani and Ishfaq Ahmad Wani were sentenced to undergo life imprisonment in proof of offences under Section 302, 120-B RPC, whereas in proof of offence under Section 201 RPC they were sentenced to imprisonment for a period of seven years and a fine of Rs.1.00 lakh each. So far as appellant Mst. Zooni is concerned, she has been sentenced to undergo imprisonment for a period of seven years and a fine of Rs.30,000/.
5) Learned Senior counsel appearing for the applicants/appellants, has contended that the appellants have been convicted on the basis of confessional statements alleged to have been made by them before the police which is inadmissible in evidence in terms of section 25 of the Evidence Act. According to the learned Senior counsel, the judgment of conviction recorded by the learned trial court is ex-facie unsustainable in law. He has further submitted that the appellant Mohammad Akram Wani has been in custody for the last about nine years and he is aged about 80 years, as such, he deserves to be enlarged on bail. It is also contended that the appellant Mst. Zooni has been convicted only for offence under Section 201 RPC and she has already undergone custody for more than five years, out of seven years imprisonment imposed upon her and, as such, she deserves to be enlarged on bail. The learned counsel has also contended that as per MOHAMMAD ALTAF BHAT 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 Page |4 Section 374 of the J&K Code of Criminal Procedure, sentence of life imprisonment awarded by a Sessions Judge cannot be executed unless it is confirmed by the High Court and, as such, presumption of innocence is attached to the appellants in spite of the fact that they have been convicted by the learned trial court.
6) Per contra, learned counsel appearing for the respondent-State has contended that the appellants have committed a dastardly act, inasmuch as they are guilty of committing murder of their own kin who happened to be the son of appellant No.1. It is also contended that there is sufficient evidence on record which has been minutely analyzed by the learned trial court in the impugned judgment, on the basis of which the appellants have been found guilty of the aforesaid offences. Thus, they do not deserve the concession of bail.
7) We have heard learned counsel for the parties and perused the record of the case.
8) Section 426 of the J&K Cr. P. C, which is in pari materia with Section 389 of the Code of Criminal Procedure of 1973, vests jurisdiction with the appellate court to suspend sentence and to release a convicted person on bail pending consideration of appeal by such convicted person. It reads as under:
"426. Suspension of sentence pending appeal, release of appellant on bail.--(I) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on MOHAMMAD ALTAF BHAT 2021.08.24 10:35 bail or on his own bond.I attest to the accuracy and
integrity of this document
CrlM No.290/2021 Page |5 (1-a) The Appellate Court may cause any person who has been released on bail under sub-section (1) to be arrested and may commit him to custody.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.
(2-a) When any person other than a person 2 [convicted of a nonbailable offence] is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended]. (2-b) Where the High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal, the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail].
(3) When the appellant is ultimately sentenced to imprisonment, or life imprisonment, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."
9) From a perusal of the aforesaid provision, it becomes clear that discretion lies with the appellate court to suspend the sentence and to release a convict on bail during pendency of the appeal and the same has to be exercised by the appellate court after recording reasons in writing.
10) The Supreme Court in State of Haryana v. Hasmat, (2004) SCC 175, while considering the scope of grant of bail under Section 389 MOHAMMAD ALTAF BHAT Cr. P. C, has explained as under:
2021.08.24 10:35I attest to the accuracy and integrity of this document
CrlM No.290/2021 Page |6 "6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.
7.The Appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accused-respondent as granted parole."
11) Again, Supreme Court has, in the case of Preet Pal Singh v. State of Uttar Pradesh and another, (2020) 8 SCC 645, while considering the power of appellate court to grant bail to a convict pending his appeal, observed as under:
"25. Section 389 provides that, pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against, be suspended and, also, if he is in confinement, that he be released on bail. Of course, in view of the mandate of Section 389(3) of the CrPC, the principles are different in the case of sentence not exceeding three years and/or in the case of bailable offences. In this case, of course, none of the offences for which the Respondent No. 2 has been convicted are bailable. Moreover the Respondent No.2 has, inter alia, been MOHAMMAD ALTAF BHAT 2021.08.24 10:35 given life imprisonment for offence under Section I attest to the accuracy and integrity of this document CrlM No.290/2021 Page |7 304B of the IPC and imprisonment for five years for offence under Section 3 of the Dowry Prohibition Act.
26. As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal, as held by this Court in Kashmira Singh v. State of Punjab and Babu Singh and Ors. v. State of U.P."
12) From a perusal of the ratio laid down in the aforesaid two judgments, it is clear that there is a distinction between bail and suspension of sentence. It is only after the appellate court records reasons in writing that bail can be granted in favour a convict during pendency of an appeal. The requirement of recording of reasons presupposes careful consideration of the material on record as well as the attending circumstances. In the case of Preet Pal Singh (supra), the Supreme Court while drawing a distinction between grant of bail in case of pre-trial arrest and grant of bail post-conviction, has, in para 35 of the judgment, observed as under:
"35.There is a difference between grant of bail under Section 439 of the CrPC in case of pre-
trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts maybe 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. and Anr.
(supra). However, in case of post conviction MOHAMMAD ALTAF BHAT bail, by suspension of operation of the 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 Page |8 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 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."
13) From a perusal of the aforesaid ratio laid down by the Supreme Court, it is clear that presumption of innocence is not available to an accused who has been convicted by a trial court whereas such presumption is available to him during investigation or trial of the case.
14) The first and foremost question which comes up for consideration is whether in the face of the provisions contained in Section 374 of the J&K Code of Criminal Procedure, which provides that sentence of death or life imprisonment cannot be executed unless it is confirmed by the High Court, the presumption of innocence continues to be attached to an accused who has been convicted by the trial court. For this, we need to go to the provisions contained in Section 374, 375 and 376 of the J&K Code of Criminal Procedure. The same are quoted below:
374. Sentence of death or life imprisonment to be submitted by Court of Session.--When the Court of Session passes sentence of death or life imprisonment, MOHAMMAD ALTAF BHAT 2021.08.24 10:35 the proceedings shall be submitted to the High Court I attest to the accuracy and integrity of this document CrlM No.290/2021 Page |9 and the sentence shall not be executed unless it is confirmed by the High Court.
375. Power to direct further inquiry to be made or additional evidence to be taken.--(l) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon, the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken. (3) When the inquiry and the evidence (if any) are not made and taken by the High Court, the result of such inquiry and the evidence shall be certified to such Court.
376. Power of High Court to confirm sentence or annual conviction.-- In any case submitted under section 374, the High Court--
(a) may confirm the sentence, or pass any other sentence warranted by law ; or
(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same, or an amended charge.; or
(c) may acquit the accused person :
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period until such appeal is disposed of.
15) From a conjoint reading of the aforesaid provisions, it is clear that when a Court of Sessions passes sentence of death or life imprisonment, a reference has to be made to the High Court and the sentence cannot be executed unless the reference is decided by the High Court. While determining the reference, the High Court is vested with the power to make further enquiry or take additional evidence MOHAMMAD ALTAF BHAT 2021.08.24 10:35 whereafter the High Court may either confirm the sentence or pass I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 10 any other sentence. It is also clear that the High Court, while determining the reference, has power to annul the conviction or order a new trial or even acquit the accused person.
16) What Section 374 of the J&K Cr. P. C provides is that sentence cannot be executed unless it is confirmed by the High Court. It does not talk of suspension of findings of fact recorded by the trial court in its judgment of conviction passed against the accused who has been put to trial. These findings of fact regarding conviction can be annulled by the High Court only after holding enquiry in terms of Section 375 of the J&K Cr. P. C and unless these findings of fact are annulled by the High Court, it cannot be stated that presumption of innocence is attached to an accused who has been convicted by the trial court.
17) Sections 366, 367 and 368 of the Code of Criminal Procedure of 1973, are in pari materia with the provisions contained in Section 374, 375 and 376 of the J&K Code of Criminal Procedure except to the extent that in the case of provisions contained in the Code of 1973, reference for confirmation of sentence of death only is provided and there is no requirement for making reference for confirmation of sentence of life imprisonment in the said Code. The reasoning that unless sentence of life imprisonment or sentence of death is confirmed by the High Court, the accused would be presumed to be innocent, whereas in the case of an accused who is convicted of an offence MOHAMMAD ALTAF BHAT which is less heinous in nature, presumption of innocence would not 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 11 be available because sentence awarded in such cases does not require confirmation by the High Court, appears to be illogical and preposterous. So, in our considered opinion the argument raised by the learned counsel for the appellants that presumption of innocence is attached to the appellant until sentence of life imprisonment is confirmed by the High Court, does not hold any merit.
18) That takes us to the question whether the applicants/appellants have been able to carve out a case for grant of bail on merits, at least in favour of those accused who have been convicted of offence under Section 302 RPC. On this aspect of the case, learned counsel for the appellants has vehemently argued that the appellants have been convicted on the basis of inadmissible evidence, inasmuch as their alleged confession before police officers has been made the basis for recording conviction against them.
19) In Preet Pal Singh's case (supra), the Supreme Court has categorically observed that the court while considering application for grant of bail to a convict, is to consider prima facie merits of the appeal coupled with other facts. The Supreme Court further observed that there should be strong and compelling reasons to be recorded in writing for grant of bail.
20) Again, in Vijay Kumar vs Narendra and Ors.(2002) 9 SCC 364, it was held by the Supreme Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that bail should MOHAMMAD ALTAF BHAT 2021.08.24 10:35 be granted. It was further held that in considering the prayer for bail in I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 12 such serious offences like murder, the Court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.
21) Although during these proceedings, it may not be open to us to have a detailed examination of the material on record lest it may amount to pre-judging and prejudice the case of the parties, yet a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. Keeping these principles in view, the contention of the learned counsel for the appellants on merits of this application is required to be tested.
22) A perusal of the impugned judgment and the statements of witnesses recorded by the trial court reveals that confessional statements of the accused have been recorded in presence of the police officers but then the learned trial court, while convicting the accused/appellants, has relied only upon those parts of the statements of the accused that have led to the discovery and consequent recovery of the dead body of the deceased, the weapon of offence and other relevant objects. These portions of the statements of the appellants appear to be admissible in evidence in view of Section 27 of the Evidence Act. Prima facie, the contention of learned counsel for the appellants, therefore, appears to be without merit. However, at this MOHAMMAD ALTAF BHAT 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 13 stage we are avoiding a meticulous or detailed examination of the statements of prosecution witnesses who have deposed touching the contents of the disclosure statements made by the accused/appellants.
A meticulous or detailed examination of the statements of these witnesses may or may not bring out inconsistencies and contradictions in their statements on vital aspects of the case but this is not the stage for this Court to undertake such an exercise as the same would amount to prejudging merits of the case. However, one thing is clear that there is prima facie material on record to establish the involvement of the appellants in the alleged crime. Thus, the appellants have failed to establish a prima facie case in their favour on merits of the appeal.
23) In light of legal position discussed hereinbefore, taking into consideration the fact that the applicant/appellant Mohammad Akram Wani has been convicted by the learned trial court for having committed murder of his own son and keeping in view the analysis of the judgment of the learned trial court for the limited purpose of this application, we are of the considered opinion that this is not a fit case where accused/applicant Mohammad Akram Wani deserves to be enlarged on bail on merits.
24) So far as the contention of learned counsel for the accused/appellants that the applicant Mohammad Akram Wani is an aged person and, as such, he deserves to be enlarged on bail on this ground is concerned, it may be correct that the aforesaid accused/ applicant is aged about 78 years as per the report submitted by the jail MOHAMMAD ALTAF BHAT 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 14 authorities yet there is nothing on record to even remotely suggest that he is suffering from any ailment either age related or otherwise. Simply because said appellant/applicant is an aged person, does not entitle him to grant of bail, that too in a serious offence of murder when he has been proved to have committed the said offence after a full-fledged trail.
25) So far as the contention of learned counsel for the appellant that appellant Mohammad Akram Wani has undergone custody of about nine years and, as such, he deserves to be enlarged on bail, is concerned, the same is without any merit. It is true that the appellant/applicant Mohammad Akram Wani, has been in custody for more than eight years during the trial of the case yet this cannot be the sole ground for enlarging him on bail, particularly in a heinous offence like murder. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another, (2004) 7 SCC 528, the Supreme Court has clearly laid down that in a case where gravity of offence alleged against an accused is severe, the bail cannot be granted only on the ground of long incarceration.
26) Apart from the above, it has to be noted that the instant appeal has been filed only in the year 2021 and it is not a case where there has been any delay in hearing of the appeal. It is only in the cases where there has been unduly long delay in hearing of the appeal that Courts have, by relying upon the judgment of the Supreme Court in Smt. Akhtari Bi v. State of M.P, AIR 2001 SC 1528, released the MOHAMMAD ALTAF BHAT 2021.08.24 10:35 I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 15 convicts on bail. The ratio laid down in the aforesaid case does not apply to the instant case, as the appeal has been recently filed by the appellants and there has been no delay in hearing of the appeal. Thus, the ground of delay in hearing of the appeal is not available to the appellants.
27) That takes us to the prayer of appellant Mst. Zooni for grant of bail. It is to be noted that the said appellant has not been found to have committed offence under Section 302 RPC. She has been convicted only for offence under Section 201 RPC and sentenced to imprisonment for a period of seven years. As per nominal roll, she has already spent more than five years in custody. Nominal roll further reveals that in case she is given remission by the authorities, she will have to spend only a few more months in the jail, meaning thereby she has undergone most of the sentence which has been awarded to her.
28) Learned counsel for the respondent-State has argued that appellant Mst. Zooni was part of the conspiracy which resulted in murder of the deceased and, as such, same treatment should be given to her as is being given to other accused/appellants in the matter of grant of bail.
29) The aforesaid contention of learned counsel for the respondent- State is without merit for the reason that other accused/appellants have been convicted of the offence under Section 302 RPC and sentenced to undergo life imprisonment whereas in the case of Mst. Zooni, she MOHAMMAD ALTAF BHAT 2021.08.24 10:35 has been found guilty of offence under Section 201 RPC only and the I attest to the accuracy and integrity of this document CrlM No.290/2021 P a g e | 16 period of sentence awarded to her is only seven years, out of which she has already spent more than five years in jail. It is not the case of the respondents that they have filed an appeal against the impugned judgment thereby challenging the acquittal of Mst. Zooni in respect of charge for offence under Section 302 RPC. This means that the State has accepted the judgment delivered by the learned trial court. Therefore, it does not lie in the mouth of the respondents to contend that the appellant Mst. Zooni should be given the same treatment as is being given to other accused/appellants in the matter of grant of bail.
30) Keeping in view the foregoing discussion and the fact that appellant Mst. Zooni is a lady and she has undergone major portion of the sentence awarded to her, her case for grant of bail deserves to be considered favourably.
31) Accordingly, we accept the prayer for grant of bail in favour of appellant Mst. Zooni but we decline the similar prayer made on behalf of the appellant Mohammad Akram Wani. Appellant Mst. Zooni is, accordingly, directed to be released on bail subject to the following conditions:
(I) That she shall furnish personal bond in
the amount of Rs.50,000 to the
satisfaction of Superintendent of Jail
concerned and a surety bond in the like
amount to the satisfaction of the
Registrar Judicial of this Court;
(II) That she shall appear before this Court
on each date of hearing;
MOHAMMAD ALTAF BHAT
2021.08.24 10:35
I attest to the accuracy and
integrity of this document
CrlM No.290/2021 P a g e | 17
(III) That she shall not leave the territorial
limits of Union Territory of Jammu and
Kashmir without the prior permission of
this Court;
32) The application stands disposed of in above terms.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
18.08.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2021.08.24 10:35
I attest to the accuracy and
integrity of this document