HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. B. A. 76/2009 Date of decision:10.02.2010 Kulwant Singh vs. State CORAM: MR. JUSTICE GH. HASNAIN MASSODI, JUDGE Appearing counsel: For Appellant (s) Mr. Sunil Sethi, Sr. Advocate. For respondent(s): Mr. Gagan Basotra, AAG. (i) Whether to be reported in Press, Journal/Media: Yes/No (ii) Whether to be reported in Journal/Digest: Yes/No Instant petition under Section 498, code of Criminal Procedure for grant of bail to Sh. Kulwant Singh S/o Vishwanath Manhas, R/o Marallian, Krishna Nagar, R. S. Pura, facing trial on the charges of having committed offence punishable under Section 302 RPC and Section 30 of the Arms Act, is edificed on the following grounds:- 1. That the petitioner has been in judicial custody since May 2005, on false and frivolous charges. 2. That the witnesses examined by the prosecution to substantiate the charges against the petitioner have not supported the prosecution case and the petitioner is being held under custody without there being any evidence on record to connect the petitioner with the alleged crime. 3. That having regard to the evidence brought on the file, there is no reasonable ground for believing that the accused is guilty of the offence alleged in the charge sheet. 4. That the trial is proceeding at a snail’s pace and unless the petitioner is enlarged on bail, he may have to suffer incarceration without there being his involvement in the alleged offence. 5. That the petitioner is highly qualified person, belongs to a respectable family and running educational institute of repute and there is no likelihood of the petitioner of giving a slip to law in the event of his bail. 6. That the petitioner has in the first instance approached the learned Trial Court for grant of bail on the four occasions i.e. 04.02.2008, 09.04.2008, 30.04.2009 and 27.08.2009 and the bail applications have disallowed 2 by the trial court without according proper consideration to the evidence brought on the file. 7. That after earlier attempts made by the petitioner for grant of bail failed, few more witnesses have been examined by the prosecution who have not supported the prosecution case. 8. That the long incarceration of the petitioner for a period of about five years and disenabled him to take effective steps for his defence. Per contra, the petition is resisted on the grounds that on 09.05.2005, the petitioner allegedly shot dead his wife with his licenced revolver at his residential house and thus, does not deserve any leniency by the court. It is pleaded that the offence alleged to have been committed by the petitioner is punishable with ‘death or life imprisonment’ and grant of bail is prohibited under Section 497 Cr. P.C. It is averred that the trial is nearing conclusion and the petition is premature, thus, liable to be rejected. Heard, perused and considered. It is well settled law that the conditions laid down in Section 497 Cr. P. C. for grant of bail to an accused alleged to 3 have committed non-bailable offence including an offence punishable with ‘death or imprisonment of life’ are to be read into Section 498 Cr. P.C., sought to be pressed into service by the petitioner. In the circumstances, it is imperative to have a closer look at Section 497 Cr. P. C. The aforesaid provision prohibits grant of bail to a person against whom there appear reasonable grounds for believing that he has been guilty of offence punishable with ‘death or imprisonment of life’. Proviso to Section 497(1) Cr.P.C. carves out exception in favour of a person under the age of 16 years, woman and sick or infirm person. In other words, a person falling in any of the categories enumerated in the aforesaid proviso may be admitted to bail, even if there appear reasonable ground for believing that such person has been guilty of offence punishable with ‘death or imprisonment of life’, provided all other conditions that must weigh with the court, while dealing with an application for bail in non-bailable offence are satisfied. A person accused of having committed offence punishable with ‘death or imprisonment of life’ may also be admitted to bail as laid down under Section 497 (2) Cr. P.C, if it appears to the court at any stage of the trial that there are no reasonable grounds for believing that the 4 accused has committed the offence of which he is charged. Section 497(2) Cr.P.C. thus, visualizes a case where a person is charged of offence punishable with ‘death or imprisonment of life’, yet when prosecution unfolds its case and adduces evidence in support of the charges, it dawns on the court that prosecution witnesses expected to support the prosecution case did not connect the accused with the alleged offence. In such a case instead of prolonged incarceration of the accused, court is given the option to admit the accused to bail and proceed with the trial. Such course may be followed even if in the opinion of the court there are sufficient grounds to proceed with the trial. The petitioner is facing trial on the charge of having committed offence punishable with ‘death or imprisonment of life’. The petitioner does not fall within any of the categories set out in proviso of Section 497(1) Cr. P.C. The petitioner, thus, to succeed in his bid to get bail has to bring his case within the ambit of Section 497 (2) Cr. P.C. In other words, the petitioner has to convince the court that having regard to the evidence brought on the file by the prosecution, there appears no reasonable ground for believing that the petitioner has committed offence punishable with ‘death or life imprisonment’. 5 Having made a brief survey of law governing the field, it is now necessary to have an overview of the prosecution case. Briefly stated, the prosecution’s case is that the petitioner was running an educational institute under the name and style of ‘Pragmatic Institute’ as also a Printing Press at R. S. Pura; that the petitioner developed illicit relations with a girl student of his institute and the relations between the petitioner and the said girl was resented by his wife Indu Rani-deceased. It is alleged that prior to the occurrence, when the petitioner asked by the deceased to discontinue with the illicit relation, the petitioner threatened the deceased and finally to remove the deceased from his way shot dead Smt. Indu Rani with his licensed revolver at his residence on the date of occurrence. The prosecution case is that the petitioner immediately after commission of offence left his residence, evaded arrest and was taken into custody ten days after the occurrence. To bring home guilt to the accused, the prosecution at the time of filing charge sheet against the petitioner proposed to rely on the testimony of Ratno Devi, domestic help at the residence of the petitioner, who according to the prosecution was first person to arrive at the scène of occurrence and saw the petitioner 6 rushing out of the room where the deceased had been shot dead. The prosecution also expected to get support from the statement of PW Karanjeet Singh and his two associates from Udhampur, who according to the prosecution visited the residence of the petitioner at his instance and saw him rushing out of the place of occurrence in a perturbed condition without taking notice of their presence. Smt. Reva Rani, sister of the deceased and Manohar Singh, her brother, the girl student and her father are expected to narrate the background in which the relations between appellant and the deceased had become strained and the alleged offence was committed. PW Rajneesh Kumar was expected to depose regarding extra judicial confession attributed to the petitioner and PW Puran Singh regarding disclosure statement and the recoveries claims to have been made at the instance of the petitioner. Prosecution also proposed to press into the services of expert evidence comprising of testimony and reports of ballistic, polygraph experts and also the medical expert who had conducted the postmortem on the dead body. Out of 28 prosecution witnesses listed in the charge sheet, 14 witnesses have been examined by the prosecution. PW 7 Mohan Lal Mether and Dr. P. M. Amgo have been given up and twelve witnesses are yet to be examined by the prosecution. It is argued by the learned counsel for the petitioner that the key prosecution witnesses namely, PW Ratno Devi, Rajneesh Kumar, Sanjay Kumar and Puran Singh have not supported the prosecution case and that the evidence to be brought on the file was not going to brighten up the prospects of the prosecution case. It is insisted that the expert’s evidence and in particular testimony of polygraph expert was either not legal evidence or did not connect the petitioner with the alleged offence. The testimony of PW Kanan Dev Singh and Karanjeet Singh, both resident of Udhampur, according to the learned counsel for the petitioner is not creditworthy as both the witnesses belong to Udhampur and their presence at village Maralia, R. S. Pura in the evening on 9th May, 2005 a place about 80 Kms away from their residence is doubtful and does not inspire confidence. Both the witnesses, according to the learned counsel for the petitioner are planted witnesses, examined to impart credibility to the prosecution case. It is insisted that the evidence brought on record by the prosecution does not make out reasonable ground for believing that 8 petitioner has been guilty of offence of which he is charged. It is argued that material brought on the file till date, leads to the irresistible conclusion that there are no reasonable grounds for believing that accused had committed the offence punishable with ‘death or life imprisonment’ and having regard to the nature of the statements attributed to the witnesses, who have yet to appear in the witness box, no improvements/addition were possible to be made to the quality of the prosecution evidence. Learned Additional Advocate General, on the other hand argues that important and material prosecution witnesses are yet to be examined and it would be premature for the court to frame any opinion regarding existence or otherwise of reasonable grounds for believing that the petitioner has been guilty of offence punishable with “death or life imprisonment”. It is argued that no developments have taken place in the trial of the petitioner since the bail application of the petitioner was rejected by the learned trial court and as no new ground has been urged in bail application, petitioner has not made out a case for bail. It is neither advisable nor permissible to delve deep into the prosecution evidence and make an effort to sift and analyze the evidence to assess its creditworthiness. Such an exercise is to 9 be undertaken by the trial court and to be postponed till prosecution evidence is concluded, the petitioner confronted with the incriminatory material and petitioner wraps up his evidence. The prosecution to prove its case against the petitioner did not at any point of time proposes to rely on any direct evidence. The prosecution intended to place exclusive reliance on indirect or the circumstantial evidence. The first and foremost circumstance, the prosecution proposed to prove is illicit relationship between the petitioner and the girl student enrolled in his Institute some time before the occurrence. Other circumstances, proposed to be proved by the prosecution to connect the petitioner with the alleged occurrence include the petitioner rushing out in a perturbed condition from the room where the deceased was found in a pool of blood, use of service revolver in the alleged occurrence, extra judicial confession attributed to the petitioner, disclosure statement made by the petitioner and the expert evidence. In a case based on indirect or circumstantial evidence, individual circumstances are like links in a chain and each and every circumstance is of equal importance. 10 In the present case, the girl student with whom the petitioner is stated to have developed illicit relation, alleged motivating factor for commission of offence, and her father are two important witnesses. They are yet to step in the witness box. The prosecution case is that the girl student is alleged victim of lustful overtures of the petitioner since she was class 9th student in petitioner’s Institute has during investigation disclosed that she was being persistently harassed by the petitioner and has been victim of lustful advances of the petitioner and followed by the petitioner even on the date of occurrence. The father of the girl, according to the prosecution case, during investigation has disclosed that his daughter was sexually harassed by the petitioner and he even lodged protest with the family members of the petitioner. Notwithstanding the stand taken by PW Ratno Devi, Sanjay Kumar, Rajneesh Kumar and Puran Singh, it is a little early in the day to opine whether there appear reasonable grounds to believe that the petitioner has or has not committed the offence alleged in the charge sheet. It is only after aforementioned two material prosecution witnesses, who are yet to appear in witness box, are examined that it may be possible for the court to draw any conclusion in this behalf. 11 This apart, having regard to the alleged vulnerability of the girl student, her complaint to have been continuously intimidated and harassed by the petitioner, there is every likelihood that the petitioner may, if admitted to bail influence and intimidate the said witnesses and thus, temper with the prosecution witnesses. For the reasons discussed above, the bail application does not merit any consideration at this stage. Resultantly, the petition is dismissed. Needless to mention that the petitioner shall not be precluded from making fresh bid for bail,after the remaining prosecution witnesses, in particular two material witnesses mentioned above stand in the witness box. It is alarming to note that the prosecution has not examined even a single witness during last one year. Learned trial court is expected to exercise control over the proceedings and take all steps, permissible under law, to secure attendance of remaining prosecution witnesses. It would be appropriate to take up the trial after every two weeks and fix Sessions stretching over a period of two to three days after such intervals so that trial is taken to its logical conclusion with proper dispatch. (GH. HASNAIN MASSODI) 12 JUDGE JAMMU 10 -02-2010 Karam* 13