Gian Chand And Another vs State
2021 Latest Caselaw 987 j&K

                                                                      Sr. No. 08

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU


                                                  CrlM No. 786/2019 in
                                                  CRA 47/2018

                                                  Reserved on 25.08.2021.
                                                  Pronounced on 27.08.2021.

Gian Chand and another                                           ..... applicant (s)

                                Through :- Mr. S.C.Gupta Advocate

                          V/s

State                                                          .....Respondent(s)

                                Through :- Mr. Vishal Bharti Dy.AG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE


                                    ORDER

Sanjeev Kumar-J:

1 This is an application by applicant/convict No.2 for suspension of

sentence and grant of bail on the ground that he is in custody since 15.03.2013

and has undergone considerable portion of his sentence. It is pleaded that the

judgment of conviction, impugned in the appeal, is primarily predicated on

two uncorroborated dying declarations made by the deceased and, therefore,

the applicant has a fair chance of succeeding in the appeal. It is urged that the

applicant has wife, aged 33 years and two school going minor daughters, aged

7 and 11 years, who in the absence of the applicant, are facing day to day

problems due to poor economic resources. It is also pleaded that the co-convict

i.e appellant No.1 in the appeal has already been released on bail.

2 On being put on notice, the respondents have filed detailed objections.

The bail plea of the applicant is opposed primarily on the ground that he has

been convicted on the basis of cogent evidence and there is every likelihood

that the judgment of conviction recorded by the trial Court would be upheld. It

is submitted that the applicant has been convicted for committing heinous

offence i.e 302 RPC by setting ablaze his sister-in-law alive by pouring

kerosene oil on her. The appeal is of the year 2018 and, therefore, it is not a

case where the pendency of appeal is for a period of more than five years.

3 Having heard learned counsel for the parties and perused the record, we

are of the view that neither the applicant deserves the concession of bail at this

stage, nor the sentence imposed upon him vide judgment impugned can be

suspended. At the time of considering the bail plea, this Court is not supposed

to sift the evidence recorded by the trial Court and return a finding of

conviction or acquittal. The merits of the appeal are required to be seen only to

find out as to whether there is a prima facie case in favour of the person

applying for bail.

4 Admittedly, the judgment of conviction has been recorded by the trial

Court on the basis of evidence led before it. There are two dying declarations

recorded and both the dying declarations are prima facie consistent with each

other. The minor discrepancies pointed out by the learned counsel for the

applicant may not be of much consequence to be considered at this stage. The

deceased in both the dying declarations has categorically named the applicant

and his father Gian Chand responsible for setting her ablaze. The impact of not

recording the statement of one Ram Khajuria by the prosecution on the veracity

of the dying declaration is a question of fact to be determined upon careful

evaluation of the entire evidence and, therefore, cannot be made the basis for

grant of bail. Otherwise also, the appeal is of the year 2018 and a period of five

years has not elapsed since its filing and, therefore, it cannot be said that the

appeal would take undue long time to be decided and, therefore, the plea of the

applicant for grant of bail ought to be accepted.

5 It is true that the applicant is in custody for the last more than eight years

but we cannot forget that he has been sentenced to rigorous imprisonment for

life and, therefore, eight years in custody cannot even represent the

considerable portion of the sentence imposed. The plea of the applicant that the

co-convict i.e appellant No.1 has since been enlarged on bail by this Court is

also without any substance for the reason that the bail to co-convict Gian

Chand was granted by this Court on the twin grounds of his old age and his

deteriorating health. The applicant is a young man and does not suffer from any

such ailment.

For the foregoing reasons, we do not find merit in this application. The

same is, accordingly, dismissed.

                        (PUNEET GUPTA)                   (SANJEEV KUMAR)
                            JUDGE                             JUDGE
Jammu
27 .08.2021
Sanjeev




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