Court refuses to grant bail to accused in case of culpable homicide not amounting to murder


SRINAGAR, Sep 25: Principal Sessions Judge, Kulgam has refused to grant bail to accused in case of culpable homicide not amounting to murder.
The full text of the order reads as....
"COURT OF THE PRINCIPAL SESSIONS JUDGE, KULGAM File No:272/M CNR.No. JKKGO100001902022 Date of Inst: 12.05.2022 Pronounced: 24.09.2022 Name of Applicants/Accused:
1. Mohammad Shafi Bhat S/O Wali Mohammad Bhat
R/O Machowa Tehsil Yaripora District Kulgam.
2. Mohd. Yaqoob Bhat S/O Mohd. Amin Bhat
R/O Sofipora Tehsil Zainapora District Shopian
3. Aarif Bashir Wani S/O Bashir Ahmad Wani
R/O Wanduna Malawrah Tehsil Zainapora District Shopian
4. Umar Farooq Wani S/O Farooq Ahmad Wani
R/O Keegam Shopian Tehsil and Distict Shopian. Through: Mr. T.A Bhat, Advocate. Versus Name of Complainant/Non-Applicants UT of J&K through Station House Officer Police Station Behibagh FIR.NO.16 of 2022 Offences u/s 147, 149, 304 IPC Through Mr. Aijaz Ahmad Najar, PP for UT of J&K.
CORAM Tahir Khurshid Raina -
1. The instant bail application has been preferred by the accused-applicant, seeking bail in the above titled FIR. It is averred in the application that applicants-accused have been arrested by the non-applicants without any justification in a frivolous case. That the facts stated in the FIR are fabricated, concocted and without any basis. That the applicants are innocent and have not committed any offence which carries punishment for life or death. That the investigating officer has failed to collect any incriminating evidence against the accused. That the applicants are innocent and are not having any criminal background. That they shall abide by any of the conditions which this court may deem fit and proper to impose while allowing the instant application. Finally, prayed that the applicants may be enlarged on bail.
2. Ld. PP of this court resisted the bail plea of the applicants. In the objections, it is contended that the above titled criminal case stands registered on the information received from the reliable sources that the deceased felt unconscious while having heated arguments with the accused and while the deceased was taken to hospital the doctors declared him dead. That during questioning the accused admitted their guilt and on their disclosure recovery of Spray Pump and Poisonous pesticides which was used to kill the deceased were recovered. That the accused have taken a precious life with full knowledge after forming an unlawful assembly. That in every non-bailable offence, the accused has to make out a case for bail and cannot claim it as a matter of right on the strength of wrong interpretation of Article 21 of our constitution. That the grounds pleaded in the bail application are neither convincing nor tenable in the eyes of law. Finally prayed that instant bail application filed by the accused may be rejected.
3. Case of the prosecution as narrated in the charge sheet is that on 30.03.2022, Police Station Behibagh received an information through reliable sources that at village Machowa in a joint apple orchard, one Zahoor Ahmad Wani S/O Ghulam Mohammad Wani R/O Machowa and Mst. Mehbooba W/O Mohammad Shafi Bhat along with other relatives were spraying pesticides. In the meanwhile Mst. Mehbooba and her relatives attacked upon said Zahoor Ahmad Wani and used abusive language. The said zahoor Ahmad Wani got unconscious and he was taken to Yaripora hospital where doctors declared him brought dead. After receiving this information, Police Station Behibagh registered an FIR No. 16/2022 U/S 147, 149, 304 IPC. During the course of the investigation, the deceased was taken to Yaripora hospital for postmortem. Thereafter, the dead body was handed over to the relatives of the deceased for last rites. Concluding that offences u/ss 147, 149, 304 IPC are made out against the accused. The accused were arrested and are in judicial custody.
Heard and Considered.
4. The sole argument of the counsel for the accused is that the charge framed in the case is not of such offences which attracts bar on bail. Therefore, their further incarceration amounts to pre-trial punishment which is in violation of right to life and liberty of a person. That bail is a rule and jail is an exception as held by Hon'ble Supreme Court of India. Hence, on the said principles he prayed for grant of bail to the accused-applicants. In support of his prayer for grant of bail, the counsel for accused also cited the following judgments:
1. State of Rajasthan, Jaipur Vs. Balchand @ Baliay. (D.O.D-20.09.1977).
2. State of Kerala Vs. Raneef on 3 January. (D.O.D-03.01.2011).
3. Sanjay Chandra Vs. CBI. (D.O.D-23.11.2011).
4. Dataram Singh Vs. The State of Uttar Pradesh. (D.O.D-06.02.2018).
5. The general principle's laid down in said judgments is that the object of bail is to secure the presence of the accused person at his trial by reasonable amount of bail. That the object of the bail is neither punitive nor preventive. That delay in concluding the trial be also considered while deciding the bail application and finally bail is a rule and jail is an exception.
6. On the other hand, the Ld. PP has placed on record the latest judgment of Hon'ble Supreme Court on grant of bail delivered in case titled Meena Devi Vs. State of Uttar Pradesh, (D.O.D 13.05.2022).
7. What is held in para 30 of the said judgment is reproduced below:
30. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav And Another it was observed by this Court that: -
"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 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 with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge." 20 (2001) 6 SCC 338 21 (2004) 7 SCC 528 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019.
8. Now taking into account the mandate of the aforementioned judgments of the Hon'ble Supreme Court in respect of bail, what comes to the fore as a guiding principle for criminal courts of the country is that order granting or refusing bail must be a reasoned order. Moreover, though the general principles that govern the entire criminal justice system are that accused be treated as innocent till proved guilty, and bail is a rule and jail is an exception. However, once an order of bail is inevitably to be based on reasons, the principles (supra) have not to be applied blindly but with reasons and justification for applying so in the facts and circumstances of the case. They are of course subject to some other guiding principle's as evolved by the Hon'ble Supreme Court in its various judgments, to be applied to their fullest while grant or refusal of bail. They are as under:
- The nature of accusation and the severity of punishment in case of conviction and the nature of evidence on record.
- Reasonable appreciation of tempering with the witnesses or apprehension of threat to the witnesses.
9. In the case in hand, a middle aged person of 45 years has lost his life on account of alleged assault of the accused on the spot when the deceased attempted to obstruct the accused from spraying the pesticide in his portion of the
land. The incident is seven months old, charge is framed and trial has commenced. Prosecution is directed to produce witnesses in the case, on the next date fixed in the case on 28.09.2022. Accused are charged with the commission of offence of culpable homicide not amounting to murder, punishable with imprisonment for life or imprisonment of either description for a term which may extend to ten years and fine.
10. Fact remains that a person has lost his life on account of the alleged assault of five persons on the spot and the investigation has prima facie established so by putting on record the evidence in the charge sheet. Court has also framed the charge of culpable homicide not amounting to murder in the case against the accused and trial has commenced. Counsel for the accused prays to ignore all these incriminating facts by recognizing only the right to life and liberty of the accused by grant of bail in their favour. However, the incriminating material on record sufficiently connects the accused at this stage with the commission of a heinous offence, wherein a person has lost his life simply on account of the assault of the accused as alleged in the charge sheet.
11. Now in such an eventuality what will be the message given by this court if the prayer of the counsel for the accused is allowed at this stage, it simply means that right to life and liberty of the accused stands recognized by the court, ignoring gravity of the offence, level of accusation against the accused and the concern of victim and victim's family. It looks more an unjust and absurd approach if it is to sustain. It will simply lead to a lawlessness in the society and people will resort to retributive theory based on "an eye for an eye" at their own in the broad day light.
12. Ld. Counsel for the accused is probably abreast with only one aspect of the law that is bail not jail for the accused. But let I remind him that there is the one another character in the criminal justice system called the victim of the offence and the victim family. In this case it is the family of the deceased who have lost their loved one's on account of the alleged criminality of the accused. The victim family consists of a widow and orphans, who have become so on account of death of the deceased by the alleged criminality of the accused which is on face of the record. Should they feel helpless in the criminal justice system that the alleged killers of their loved ones gets released simply because their right to life and liberty is recognized by the court inspite of prima facie evidence on record of their criminality. Should the victim family just remain sitting at the fence, quite gagged as a mute spectator of these painful moments for them, and especially when accused who are the apparent reason for death of their loved ones moving free in the society at their whim and wish.
13. That is not the position of the law, nor the law is so cruel to be concerned only about life and liberty of the accused with scant regards for the victim and victims family. It is in this context gravity of the offence committed by the accused and level of accusation on record against the accused are the guiding principles for criminal courts to consider while granting bail to the accused.
14. As put earlier, in this case a person has lost his life on account of the alleged criminality of the accused. Punishment prescribed is quite severe and level of accusation is quite clear and pointing. In this context, both the aforementioned factors when applied in the instant case, completely disentitles the accused who are alleged to have assaulted a person on the spot to such an extent that it led to his death. Though the accused are not charged under section 302 IPC but 304 of the code, but the gravity of the alleged offence committed is still quite serious which entails punishment for the accused which is life imprisonment or imprisonment for ten years and fine. So even if there is no bar on bail, but still when tested on other parameters like gravity of the offence committed, level of accusation against the accused and the punishment prescribed, the obvious consequence for the accused is jail not bail.
15. More importantly, the material witnesses in the case are yet to appear in the witness box to depose and there is every apprehension that accused if released on bail will attempt to coerce approach or intimidate the prosecution witnesses from making free and fair depositions in the court to save themselves from the severe penal consequences of their alleged serious crime.
16. Apart, in my humble appreciation of the issue, the stage of criminal proceedings in the case is also very important to be taken note of by the court while considering grant or refusal of the bail to the Accused, especially when the offences in which accused is booked or being tried are serious in nature. If bail will be readily available in platter to the accused of such serious crimes that too at the incpetion stage of the trial, without first considering the gravity of the offence, level of accusation and the concern of the victim and victim's family, I am afraid that society will face threatened and jeopardized at the hands of criminals, with a potential of horrible consequences.
17. In view of what stand discussed in the preceding paras, I do not find the prayer of the accused for grant of bail sustaining at this stage, which is accordingly rejected. Be made part of main challan file after its due compilation.
Announced 24.09.2022
Pr. Sessions Judge, Kulgam.”

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