Arif Bashir Wani vs Union Territory Of J&K & Anr on 2 December, 2023

[Cites 8, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Arif Bashir Wani vs Union Territory Of J&K & Anr on 2 December, 2023

1) The petitioner, who is facing trial in a case arising out of FIR No.16/2022 for offences under Section 147, 149 and 304 of IPC registered with Police Station, Behibagh Kulgam before the Court of Principal Sessions Judge, Kulgam, has moved the instant application for grant of bail.

2) It is contended in the petition that statements of most of the prosecution witnesses have been recorded by the trial court but they have not supported the prosecution version and in spite of this, when the petitioner approached the Court of Principal Sessions Judge, Kulgam, for Bail App No.68/2023 c/w Crl R No.18.2023 Page 1 of 8 grant of bail, the same was rejected by the said Court vide order dated 17.05.2023. It has been submitted that out of 19 witnesses cited in the challan, 09 witnesses are eye witnesses, out of whom 08 witnesses have already been examined by the trial court. It has been further submitted that even as per the report of the FSL, no poison was detected in the viscera of the deceased and, therefore, the story of the prosecution that the deceased had died because the petitioner had sprinkled pesticides in his mouth has proved to be false. It has been submitted that the witnesses who are yet to be examined happen to be the police and Government officials and in case petitioner is enlarged on bail, there is no chance of his tampering with the prosecution witnesses. Lastly, the petitioner has undertaken to abide by the conditions that may be imposed upon him by this Court in the event bail is granted in his favour.

3) The respondents have resisted the bail application, primarily, on the ground that the petitioner has been involved in a heinous crime which has resulted in death of an innocent person, therefore, he does not deserve to be enlarged on bail. It has been further submitted that from the testimony of the witnesses recorded during the trial of the case, involvement of the petitioner in the alleged crime is, prima facie, established. It has been submitted that a number of prosecution witnesses are yet to be examined and in case the petitioner is admitted to bail, he may extend threats to the prosecution witnesses and influence the witnesses which would not be in the interests of fair trial.

Bail App No.68/2023 c/w Crl R No.18.2023 Page 2 of 8

4) I have heard learned counsel for the parties and perused the material on record including the trial court record.

5) Briefly stated, the allegations against the petitioner as contained in the challan filed against him before the trial court are that on 30.03.2022, while accused Mst. Mehbooba, Arif Bashir Wani (the petitioner herein) and Umar Farooq Wani were sprinkling pesticides in an orchard, which is joint property of deceased Zahoor Ahmad Wani situated at Village Mochwa, the deceased objected to it, as a result of which there was a scuffle and the accused persons abused the deceased and pushed him with fists and kicks. The deceased was beaten up and the accused persons, after pointing the nozzle of the pesticide sprinkling machine towards him, sprinkled pesticides over his body and mouth whereafter the deceased fell down unconscious. The deceased was taken to the hospital where he was declared as brought dead.

6) Vide order dated 24.08.2022, charges for offences under Section 147, 149 and 304 of IPC were framed against the accused including the petitioner herein and the trial of the case commenced. It appears that out of 19 listed witnesses, 11 witnesses have been examined by the trial court whereas 08 witnesses are yet to be examined. It also appears that the learned trial court has rejected the bail application of the accused on two occasions, firstly on 24.09.2022 and thereafter on 17.05.2023.

7) Before coming to the rival contentions of the parties, it would be apt to refer to the legal position relating to grant of bail in heinous offences Bail App No.68/2023 c/w Crl R No.18.2023 Page 3 of 8 like the present one. The Supreme Court in its catena of judgments has culled out the factors that are required to be considered in such cases. These factors include:

1. Whether there is a, prima facie, reasonable ground to believe that the accused has committed the offence;

2. Nature and gravity of the charge;

3. Severity of punishment in the event of conviction;

4. Danger of accused absconding or fleeing, if released on bail;

5. Character, behavior, means, position and standing of the accused;

6. Likelihood of the offence being repeated;

7. Reasonable apprehension of the witnesses being tampered with;

8. Danger of course of justice being thwarted by grant of bail;

8) So far as the instant case is concerned, the petitioner is facing trial for the charge of culpable homicide not amounting to murder which is punishable with imprisonment for life or imprisonment for a period of 10 years. The Supreme Court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and another, (2004) 7 SCC 528, while laying down the guidelines for grant or refusal of bail in serious offences, has 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 Bail App No.68/2023 c/w Crl R No.18.2023 Page 4 of 8 committed a serious offence. Any order devoid of such reasons would suffer from non-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 of the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others and Puran Vs. Rambilas and another.

12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay, supra).

9) In the aforesaid judgment, the Supreme Court has also observed that the conditions laid down in Section 437(1)(i) of Cr. P. C are sine qua non for granting bail even under Section 439 of the Code, meaning thereby that in a case where a person is alleged to be involved in an offence punishable with death sentence or imprisonment for life, he cannot be released on bail if there appear reasonable grounds for believing that he has been guilty of such an offence.

10) In the instant case, the petitioner is facing trial for an offence which carries maximum punishment of life imprisonment but the said offence is Bail App No.68/2023 c/w Crl R No.18.2023 Page 5 of 8 not punishable with death sentence. Therefore, the stringent conditions for grant of bail as contained in Section 437(1)(i) of Cr. P. C may not be applicable to the present case. Nonetheless, the allegations made against the petitioner and co-accused are very serious in nature as they are alleged to be responsible for death of an innocent person. As has been held by the Supreme Court in Kalyan Chandra Sarkar's case (supra), the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case cannot be undertaken. However, reasons for prima facie concluding why bail is being granted are to be recorded in the order before an accused, who is alleged to have committed a heinous offence, is bailed out.

11) In the light of the foregoing legal position on the subject, let us now advert to the facts of the instant case. As already noted, the prosecution has examined 11 witnesses out of 19 witnesses cited in the challan. There are 08 eye witnesses to the occurrence and all of them have been examined by the prosecution. The witnesses who are yet to be examined are the Government officials like doctor, police officials and the revenue officials. So far as the statements of the eye witnesses recorded by the prosecution are concerned, a cursory look at these statements would reveal that they have not supported the prosecution story. While PWs Umar Mushtaq, Ashiq Ahmad Malik, Abdul Rashid Wani, Mohammad Amin Wani and Afreena Zahoor have turned hostile, the other eye witnesses to Bail App No.68/2023 c/w Crl R No.18.2023 Page 6 of 8 the occurrence, namely, Aqib Ahmad Malik and Sayar Ahmad Itoo have not implicated the petitioner in the alleged crime as they have deposed that they cannot state whether or not the petitioner is involved in the alleged crime. Thus, without even meticulously examining the statements of the witnesses recorded by the prosecution, who all happen to be the eye witnesses to the occurrence, prima facie, it appears that there are reasonable grounds for believing that the petitioner is not involved in the commission of the alleged crime.

12) Apart from the above, as per case of the prosecution, the deceased had died because the accused had sprinkled pesticides into his mouth which resulted in poisoning but the FSL report, which has been produced before the trial court during the trial of the case, reveals that no poison was detected in the viscera of the deceased. Thus, the death of the deceased by poisoning is also ruled out. In the face of aforesaid discussion, it is clear that the petitioner has been successful in carving out a case for grant of bail in his favour at this stage.

13) Even though the learned trial court has rejected successive bail applications of the petitioner yet this Court, being a superior Court, is vested with jurisdiction to entertain the bail application of the petitioner.

Otherwise also, during the pendency of this bail application, all the eye witnesses have been examined which was not the case when the last bail application of the petitioner was rejected by the trial court. Therefore, there has been a change of circumstance after the rejection of last bail Bail App No.68/2023 c/w Crl R No.18.2023 Page 7 of 8 application by the trial court. The contention of the respondents that there has been no change of circumstances, therefore, deserves to be rejected.

14) For what has been discussed hereinabove, the application is allowed and the petitioner is admitted to bail subject to the following conditions:

I. That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;

II. That he shall appear before the trial court on each and every date of hearing;

III. That he shall not leave the territorial limits of the Union Territory of J&K without prior permission of the learned trial court;

IV. That he shall not tamper with the prosecution witnesses.

15) The observations made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as expression of an opinion on the merits of the case.

16) The bail application shall stand disposed of. Crl R No.18/2023

In view of the order passed in Bail App No.68/2023 hereinbefore, the instant criminal revision petition has been rendered infructuous. The same is dismissed accordingly.

(SANJAY DHAR) JUDGE Srinagar, 02.12.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:          Yes/No
                   Whether the order is reportable:        Yes/No
Bail App No.68/2023
c/w
Crl R No.18.2023                                                         Page 8 of 8

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court - Srinagar Bench