Shahijahan Padder Alias Shah Lal ... vs State Of J&K Through Sho P/S Kulgam
2022 Latest Caselaw 137 j&K/2

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    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                           CrlM No. 1204/2021 IN
                                           CrlA(D) No. 18/2021
                                           c/w
                                           Crl.Ref(L) No.3/2021

                              Reserved on:- 24.02.2022
                              Pronounced on:- 25.02.2022

Shahijahan Padder alias Shah Lal Padder

                                                ...Appellant(s)

           Through:
           M/S, Alla ud din Ganai, S.M.Ayub Advocates.

                              V/s

State of J&K Through SHO P/S Kulgam

                                               ...Respondent(s)
           Through:
           Ms. Asifa Padroo, AAG.
CORAM:
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE MOHD. AKRAM CHOWDHARY, JUDGE


                                   ORDER

(Per Chowdhary, J)

1. Appellant herein seeks suspension of sentence and grant of bail in

the above titled Appeal filed by him as well as Criminal Reference

received from the court of learned Sessions Judge, Kulgam. The

Conviction Appeal has already been admitted to hearing in terms of

the order dated 07.12.2021.

2. The appellant had been convicted and sentenced for commission of 1

offences punishable under Sections 364, 302 and 201 RPC vide

judgment and order dated 30.09.2021 and was awarded life

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imprisonment along-with fine of Rs.10,000/- under Section-302

RPC, 10 years imprisonment with fine of Rs.5000/- under Section-

364 RPC and 03 years imprisonment and fine of Rs. 5000/- under

Section-201 RPC in a case titled State through SHO P/S Kulgam

Vs. Shahijahan Padder @ Shah Lal Padder (File No. 163/B),

arising out of FIR No. 96/2010 registered at Police Station

Kulgam. All the sentences of imprisonment have been ordered to

run concurrently.

3. Trial court charge-sheeted the appellant-convict vide order dated

27.07.2010, on whose denial of the charge, the case was taken up

for recording evidence.

4. Prosecution, to prove its case, examined 29 out of 30 listed

witnesses, whereas the defense examined 02 witnesses on its

behalf.

5. On conclusion of trial, the trial court, vide impugned judgment,

based on circumstantial evidence, holding that the chain of events,

like motive, last seen, disclosure, recoveries and expert evidence,

was complete to constitute and prove the commission of the

offences under charge, recorded conviction of the appellant-convict

for the commission of offences punishable under Sections 364, 302

and 201 RPC.

6. The impugned judgment and order has been assailed mainly on the

following grounds:-

i) that, as a matter of fact the case was of no-evidence yet the

appellant-convict was convicted;

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ii) that, one Mst. Banoo, relative of PW-2 (Haseena-mother of

the deceased), who had stayed at complainant's house during

the night and could have been the natural witness, was

neither cited nor examined as a witness by the prosecution,

and also the statement of Gull Bhat alias Wadoo, from whose

house the complainant (PW-1) had received phone call from

the deceased, had also neither been cited nor examined as a

witness, however, this lapse on the part of the prosecution,

which was of vital aspect, was overlooked by the trial court

while recording conviction, therefore, impugned judgment

and order is liable to be set aside on this count alone.

iii) that, the complainant (PW-1) had admitted that PW-2 (Mst.

Haseena-mother of the deceased) was out of her home on the

fateful evening as she had gone to the house of one

'Peerbaba', whereas the trial court has based the judgment on

the statements of PW-1 and PW-2 to prove the last seen

theory rendering the abduction of the deceased, as not

proved;

iv) that, the recovery of alleged weapon of offence (axe) has not

been connected with the forensic evidence;

v) that, the alleged disclosure statement made by the appellant-

convict reveals that the weapon of offence was washed by

him in the river, and if this statement is to be believed there

was no possibility of blood stains remaining on the axe,

whereas the seized axe was stated to have been having blood P a g e |4

stains, therefore, the seizure of recovery of weapon of

offence has been manipulated during the investigation.

vi) that, the medical and forensic evidence was also not

conclusive, for the reason that the postmortem report does

not disclose the Blood Group of the deceased, and that the

FSL has not conducted Blood grouping, therefore, the Blood

Group "O" whether '-ve' or '+ve' cannot be essentially

connected with that of the deceased, as such, there is

complete broken link in the chain of circumstances;

vii) that, one jeans pant and one cane (wooden danda) with blood

stains had been recovered from the house of Ayub Magrey

and Suhail Magrey on 29.04.2010 but these items have not

been sent to FSL for matching the blood samples with that of

the deceased;

viii) that, one 'Nokia' phone had also been recovered, however,

no scientific evidence with regard to it including call details,

had been collected during the investigation;

ix) that, there are inherent contradictions in the prosecution

evidence and on the basis of the evidence led by the

prosecution, appellant-convict was entitled to be acquitted

instead of being convicted;

x) that, the judgment has been passed on unwarranted

presumptions.

7. The application seeking suspension of sentence and grant of bail

has been moved by the appellant-convict mainly on the following

grounds;

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a) that, he had already undergone 12 ½ years imprisonment;

b) that, he is sure to succeed in appeal on its merits, however,

appeal is likely to take some time.

8. Respondents, ex-adverso, have filed their objections to the

application asserting therein that the trial court has convicted the

appellant-convict after holding full-fledged trial minutely and

sifting the evidence after its proper appraisal. The offences, for

which the appellant-convict has been convicted, are grave and

heinous in nature. The appellant-convict is a hardened criminal and

any concession to reinstate him back in the society would lead to

vibrant risk of extending opportunity to him to commit a similar or

identical crime. It is contended that the appellant-convict had

displayed pre-dispossession for criminality, as he had committed

anti-social offences having serious ramifications running contrary

to the larger public interests.

9. Heard and considered.

10. Learned counsel for the appellant-convict has vehemently argued

that the conviction, recorded by the trial court, cannot be

maintained for the reason that the impugned judgment has been

passed on unwarranted presumptions without appreciating the

evidence in its right perspective. He has further argued that in a

case, based on circumstantial evidence, evidence has to be

appreciated with great circumspection, since such evidence has

weak evidentiary value. He further submits that the appellant-

convict has all chances to be acquitted by this Court at the time of

final hearing of Appeal, and that the appellant-convict having been P a g e |6

in custody for more than a decade shall be suffering the punishment

even if his conviction is set aside by this Court while hearing the

appeal finally. He, therefore, prayed that the sentence be suspended,

and as a consequence the appellant-convict be admitted to bail till

disposal of appeal.

11. Ms. Asifa Padroo, learned AAG, on the other-hand resisted the

plea of suspension of sentence and the bail, raised by the appellant-

convict, asserting that the appellant-applicant has been convicted in

a heinous offence including that of murder, and that the trial court,

after passing lucid judgment, has recorded conviction of the

appellant-convict, and in such a situation when the conviction has

already been recorded by the trial court, the appellant-convict

cannot ask for concession of suspension of sentence and grant of

bail for 'no pressing' reason. Mere detention of the convict, in a

case where he has been awarded life imprisonment, for more than a

decade will not entitle him to such a relief. Learned AAG finally

prayed that the application moved in this behalf may be rejected.

12. Shorn of minute details the factual matrix of the case is one

Mohammad Altaf Padder (hereinafter called as 'deceased') was

having some grudge against his father Ali Mohammad Padder for

not acknowledging his due share in the property and also not

coming to his help, as his father had solemnized second marriage

and was living with his second wife only; that the deceased

engaged one Shahjahan Padder alais Shah Lal Padder S/O Ghulam

Hassan Padder R/O Mirhama, Kulgam (hereinafter called as

'appellant-convict'), as a contract killer to kill his father and paid P a g e |7

an amount of Rs.50,000/- as a consideration amount therefor; that

few days before the date fixed for the contract killing, the deceased

entered into compromise with his father and the relationship

between the two resumed; that the deceased took u-turn about the

plan of killing his father through the said contract killer (appellant-

convict) and he demanded his money back from him, on account of

reconciliation with his father; that the appellant-convict did not

agree to return the money and made a plan to kill the deceased; that

on 25.04.2010, the appellant-convict went to the residence of

deceased at Mirhama, in the evening, took him along to get his

dispute settled with his father, however, during the intervening

night of 25-26 April, 2010 he killed the deceased by executing his

plan successfully and in the morning dead body of the deceased

was found.

13. As has been pointed out in the preceding paras, the appellant-

convict has raised some vital points for consideration in the

memorandum of appeal, such as non-presence of one of the

witnesses who has been cited as witness to the last seen and some

other important factors relating to recovery and seizure of weapon

of offence besides some important circumstances by which the

chain linking the events is missing. The appellant-convict has been

in custody since his arrest in the month of April, 2010 for more

than 12 years now.

14. On consideration of the pleadings, facts and circumstances of the

case and rival submissions made by learned counsel appearing for

the appellant-convict, some very important arguable points have P a g e |8

been raised for disposal of the Appeal preferred by him and the

Criminal Reference made by the trial court. Appellant-convict has

been convicted by the trial court after a prolonged trial spanning

more than a decade, as against his right of speedy trial.

15. Having regard to the inordinate delay in the trial of the appellant-

convict for more than a decade, this Court in view of the serious

offence of murder, for which the appellant has been convicted, has

to keep in mind for consideration of the application for suspension

of sentence and bail, the criminal antecedents of the convict. The

convict appears to be the first offender. Respondent has not been

able to point out any of the criminal antecedents of the appellant-

convict. Though the presumption of innocence of accused comes to

an end with the recording of his conviction but the concept of

liberty has to be recognized under Article 21 of Constitution of

India encompassing speedy trial, when the appeal is a continuation

of proceedings of trial as the conviction does not attain finality.

16. The Hon'ble Apex Court in a case titled Smt. Akhtari Bi Vs.

State of M.P, reported as AIR 2001 SC 1528 has held as under:-

"To have speedy justice is a fundamental right which

flows from Article 21 of the Constitution. Prolonged

delay in disposal of the trials and thereafter appeals in

criminal cases, for no fault of the accused, confers a

right upon him to apply for bail."

It has also been held in the above titled case "that Appeal

being a statutory right, trial court's verdict does not attain finality P a g e |9

during pendency of the Appeal and for that purpose trial is deemed

to be continuing despite conviction."

17. In another case titled Kashmira Singh Vs. State of Punjab,

1977(4) SCC 291, the Hon'ble Apex Court has observed as under:-

"...It would indeed be a travesty of justice to keep a

person in jail for a period of five or six years for an

offence which is ultimately found not to have been

committed by him. Can the Court ever compensate

him for his incarceration which is found to be

unjustified? Would it be just at all for the Court to tell

a person: "We have admitted your appeal because we

think you have a prima facie case, but unfortunately

we have no time to hear your appeal for quite a few

years and, therefore, until we hear your appeal, you

must remain in jail, even though you may be

innocent?" What confidence would such

administration of justice inspire in the mind of the

public? It may quite conceivably happen, and it has in

fact happened in a few cases in this Court, that a

person may serve out his full term of imprisonment

before his appeal is taken up for hearing. Would a

judge not be overwhelmed with a feeling of contrition

while acquitting such a person after hearing the

appeal?"

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Same observation has been reiterated in a case titled Rajesh

Ranjan Yadav @ Pappu Yadav Vs. C.B.I. reported as (2007)1

SCC 70.

18. Hon'ble Apex Court in a case Sandeep alais Raja Acharya Vs.

State of Orissa, reported as AIR 2017 SC 1568, having regard to

the custody of nearly 09 years and the possible time by which the

appeal before the High Court can be disposed of ordered release of

the appellant therein on bail.

19. Following the above dictum laid down by the Hon'ble Supreme

Court, a co-ordinate Bench of this Court in a case titled Irfan

Ahmad Bhat Vs. State through Police Station, Budgam (BA No.

173/2018), ordered suspension of sentence awarded to the accused

who was in custody for almost 12 years.

20. Another Bench of this Court comprising one of us (Magrey,J) also

had granted bail in a case titled Mst. Akhtara Vs. State of J&K &

Ors.( B.A. No. 77/2017 In Cr.Appeal No.11A/2017 c/w Cr.Ref.

No.02/2016), where the appellant had been in custody for over 10

years.

21. The current board of this Court does not render it possible to

expedite hearing in the main appeal. There seems to be no chance

of appeal, filed by the appellant-convict, to be disposed of at an

early point of time. Having regard to the period of custody of more

than 12 years suffered by the appellant-convict herein and the

possible time by which his appeal before this Court can be disposed

of, we are persuaded to suspend his sentence and release him on

bail.

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22. For the foregoing reasons and the observations made hereinabove,

the appellant-convict has made out a case for interference of this

Court for suspension of sentence. As a consequence, the sentence

of the appellant-convict is suspended till final disposal of the

Appeal and he is directed to be released on bail on furnishing of

personal bond in the sum of Rs.50,000/- with two sureties in like

amount to the satisfaction of concerned Jail Superintendent subject

to further following conditions:-

I) That, he shall appear in the case on each and every

date of hearing before this Court without any excuse.

II) That, he shall report to the SHO, Police Station,

Kulgam at any time during the day light hours on the

2nd Saturday of every month.

23. Respondent shall, however, be at liberty to seek cancellation of

bail, on motion, in case concession of bail is misused by the

appellant in any manner.

24. Application bearing CrlM No. 1204/2021, is disposed of

accordingly.

25. List the main Appeal along-with Criminal Reference for

consideration on 20.05.2022.

(MOHD. AKRAM CHOWDHARY) (ALI MOHAMMAD MAGREY) JUDGE JUDGE

Srinagar 25.02.2022 Muzammil. Q

Whether the order is reportable: Yes / No