Mohinder Singh Age 24 Years vs Union Territory Of Jammu And ...
2023 Latest Caselaw 895 j&K

                                                         S. No. 5
                                                         Supp Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                    Bail App No. 83/2023
                                                 Reserved on: 26.04.2023
                                               Pronounced on:09.05.2023


1. Mohinder Singh age 24 years,                             ...Petitioner(s)
   S/o Sh.Yog Raj,
   R/o Village Jakhed Tehsil Latti,
   District Udhampur (J&K).
2. Mohd. Rafee age 23 years,
   S/o Sher Mohd,
   R/o Village Dudu Tehsil Latti,
   District Udhampur (J&K).
Through: Mr. Neeraj Gupta, Advocate.
                                      Vs.

Union Territory of Jammu and Kashmir through Police        ...Respondent(s)
Station Basantgarh.
Through: Mr. Sumeet Bhatia, GA.
CORAM:
     HON'BLE MR JUSTICE MOHAN LAL, JUDGE

                             JUDGEMENT

1. Applicants presently lodged in District Jail Udhampur for the last almost two (2) years in case FIR No. 19/2021 registered with Police Station Basantgarh (Udhampur) for commission of offences punishable under Sections 376-D/342/34 IPC have claimed bail on the grounds, that after conclusion of the investigation a formal chargesheet has been filed against them which is pending trial in the Court of Principal Sessions Judge Udhampur wherein formal charges have been framed against the applicants/accused, and out of 17 witnesses listed in the challan almost four (4) witnesses including the prosecutrix have been examined. It is averred, that PW-1 (prosecutrix) on 12.04.2022 has been examined by the trial court and she in her evidence has never supported the prosecution story and has not tendered any incriminating evidence against the applicants/accused,

and even has not identified them in the Court. It is moreso averred, that applicants/accused are innocent, peace loving citizens of the Country and have committed no offence, otherwise also the offences charged against the applicants/accused are not punishable with life imprisonment or death penalty, presumption of innocence always lies in favour of the applicants/accused as it is the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent till guilty is proved against him, the applicants/accused are ready to abide by all the terms and conditions imposed by this Court.

2. Respondent has opposed the bail on the grounds, that the offences alleged against the applicants/accused are against the interests of the society, there is every likelihood that if the applicants/accused are enlarged on bail they would temper with the prosecution evidence. It is contended, that allegations against the applicants/accused are serious in nature, the punishment for the said offences is severe in nature, hence applicants/accused do not qualify for concession of bail.

3. Learned counsel for the applicants has sought their release on bail by vehemently canvassing arguments, that applicants are peace loving citizens of the Country, have been falsely implicated in the case as the evidence lead by PW-1 (prosecutrix of the case before the trial Court) has totally exonerated the applicants/accused from the crime alleged, as she in her deposition has clearly categorically stated that applicants/accused have not committed any rape upon her and even she has not identified them in the Court. It is argued, that for the last two (2) years applicants are languishing in District Jail Udhampur for no fault, in view of the fact that the statement of prosecutrix has been recorded, there cannot be any apprehension on the part of the respondent that if released on bail applicants would temper the prosecution evidence or influence the victim and dissuade her from deposing before the court of law.

4. Learned Government Advocate for respondent has strenuously opposed the grant of bail by articulating arguments, that applicants/accused are involved in serious crime of gang rape which is against the society at large, the nature and character of evidence

adduced by the prosecution witnesses before the trial Court cannot be appreciated in bail application, there is reasonable apprehension that if enlarged on bail the applicants would give slip to law and flee from the course of justice. Prayer has been made for rejection of bail.

5. I have heard Ld. Counsel for parties, gone through the contents of bail application and objections filed thereto by the respondents and have also gone through the relevant law on the subject matter. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by ld. Counsel for the petitioner in the bail application requires to be examined generally. Applicants are indicted for commission of offences u/s 376-D/342/34 IPC, for gang rape of prosectrix (PW-1). The prosecution so far has examined four (4) witnesses included prosecutrix (PW-1) who in her deposition before the trial court has exenorated the applicants for the commission of crime attributed to them. In a case law reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors) this Court while granting the bail to the accused charged for commission of offences u/ss 306/498-A RPC, and while discussing the principles of "prima- facie case", "question of influencing the prosecution witnesses" & "approach of the court in granting bail in non-bailable offences", in paras 17, 18 & 19 of the judgment held as under:-

"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed.

Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other

circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.

18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot beaccepted unless there is some material to that extent.

19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.

Ratio of the judgment (Supra) makes the legal proposition manifestly clear, that even if prima-facie case is established, the approach of the court in granting bail should be that the accused should not be detained by way of punishment and regarding influencing of witnesses, the material witnesses viz; prosecutrix and her parents cannot be expected to be win over by the accused.

In another case law reported in 2016(2)J.K.J 702, [Arjun Katal and Ors. versus State of J&K & Ors.] t h i s Court while granting bail to accused for offences u/ss 498A, 304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17, 25 & 26 of the judgment held as under:-

B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt.,1989,Section 498A,304B and 306- Dowry death-Grant of bail-Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners- Bar under proviso of Section 497C not attracted- Petitioner husband and mother- in-law in custody for more than one years-Refusing bail nothing but

punishing petitioners for alleged involvement in death of deceased -Bal allowed.

17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. There seems substance in the argument of learned counsel for the petitioners that entire evidence implicating the hole family including parents-in-law and brother-in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O did not even investigate whether the brother-in-law was also present in the house during those days or not.

25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court.

26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015. Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the

brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners‟ tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law. Ratio of judgment (Supra) further makes the proposition of law abundantly clear, that refusing bail is nothing but punishing the accused, whether the accused is responsible for the death of the deceased has to be verified during trial and material witnesses viz; family members of deceased cannot be win over. Ratios of the judgments of "Jagdish Kumar‟s Case" & "Arjun Katal‟s Case", (Supra) settles the legal controversy at rest and makes it abundantly clear, that the approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his/her presence would be readily available for trial & material witnesses viz; family members of the deceased cannot be win over.

6. Applying the ratios of the judgments (Supra) to the facts of the bail application in hand, applicants for the last almost 2 years are languishing in District Jail Udhampur and even the proxecutrix in her deposition before the trial court has totally exonerated the applicants from commission of crime and has not even identified them in the court. The apprehension of the prosecution that the grant of bail to applicants/accused would win over/tamper the prosecution evidence is therefore ruled out. In light of ratios of the judgments (Supra) the law is no longer res-integra, and it is now settled cardinal principle of criminal jurisprudence that approach of the court in the matters of bail should be that the accused should not be detained by way of punishment which can only be inflicted upon the accused after the regular trial and if he is found guilty. The powers to grant bail has to be considered in the backdrop of the constitutional guarantees contained in Article-21 of the Constitution of India which guarantees

right to liberty of an individual [vide Jagir Singh Vs. Jagat Singh & Anr. 2012 (2) JKJ 231 (HC)]. Every accused has right to defend his case and by keeping the accused in detention, it would defeat his right to defend his case. Applicants/accused in the case in hand cannot be kept in incarceration for an indefinite long period of time, as the same would amount to inflicting pre-trial punishment which is against the basic tenets of criminal jurisprudence. Speedy trial is one of the fundamental rights of an accused which could get defeated if the prosecution shows slackness and delay in examining its witnesses, therefore, the trial court is within its bounded duty to concluded the trial expeditiously. The apprehension of the prosecution that petitioner will abscond can be secured by way of sufficient surety from petitioner. In view of the aforesaid discussion, applicants/accused have carved out a strong case for grant of bail in their favour. Accordingly, applicants/accused are admitted to bail subject to their furnishing surety bonds in the sum of Rs. 50000/- each before Registrar Judicial of this court with the direction to furnish personal recognizances of the like amounts before Superintendent District Jail Udhampur. However, before parting the following conditions are imposed upon the applicants/accused:-

(i) that the applicants/accused shall appear before the trial court on each and every date of hearing except exempted by the trial court;

(ii) that in case the prosecution collects any material that during the bail period applicants/accused have influenced any of the prosecution witnesses or tried to intimidate them, the prosecution would be well within its rights to move an application before this court for cancellation of their bails.

7. Disposed of accordingly.

(MOHAN LAL) JUDGE SRINAGAR 09.05.2023 Ishaq Whether the judgement is speaking ? Yes/No Whether the judgement is reportable ? Yes/No