Bashir Ahmad Shah vs State of Jammu and Kashmir

G.L. Raina, J.—While facing trial in Sessions Case No. 49/96 on the dockets of Sessions Judge, Baramulla, the accused's attempts to

secure bails aborted as the trial Court turned down his two successive applications to that effect. It is thus that the accused has come up seeking

indulgence so that he gets bailed out from incarceration pending determination of his guilty.

In order to dispose of a bail motion reference to the broad features of the case cannot be avoided. Reference to the nature and character of the

evidence sought to be relied on to sustain the charge is inevitable as Section 497, Cr.P.C. creates the bar to the exercise of discretion to grant bails

in cases where reasonable grounds exist to believe that the accused person(s) is/are guilty of the offence punishable by death or imprisonment for

life: The formation of this belief depends on the evidence to be offered by the prosecution to prove the charge.

The Court has thus to consider the nature and the character of the evidence as the proposition of the law is well established that principles

governing grant of bails u/s 497, Cr.P.C. are to govern the disposal of bail motions u/s 498 of the Code as well. It is thus that reference to the facts

on which the present case is based is essential as otherwise the bail motion cannot be disposed of justly.

On the basis of the report of occurrence, the case was registered in P/S Baramulla as FIR No. 19/86 for the offence punishable under Sections

364 and 302, RPC. The report gave out that the informant's brother namely Ab. Majid Shah was at about 11 O'clock of the night falling in

between 18th and 19th of January, 1996 at his aboard that he was called out and taken away by some unknown persons. He did not return and

instead his dead body was located on a road side in the forenoon on 19th of January, 1996 at Village Sharkwara, Baramulla. The FIR did not

name any person as the accused but made a mention that the informant had gathered the impression that his brother had been taken away by the

armed activists of Ikhwanul Muslimeen- a group that was called the group of militants.

The dead body on recovery was subjected to the post-mortem examination but the doctor who conducted it found himself unable to frame any

opinion regarding the cause of death because the dead body had ostensibly no internal or external injury or abnormality. The doctor, therefore,

forwarded the viscera for chemical analysis to the Forensic Science Laboratory and reserved his opinion about the cause of. death. It appears that

vide the opinion EXPM-2, testified to by the doctor, the cause of death was, according to the report of chemical analysis, poisoning by Zinc

Phosphite. Put in other words the doctor did not frame any independent opinion as to the cause of death but it was on the basis of the report of

chemical examination of the deceased's viscera that he opined that administration of Zinc Phosphite had caused death. The fate of the case thus

hinges on the report of the chemical examination about the viscera.

It is shocking to note that the investigating agency did not bring on record the report of chemical examination nor did it cite the chemical

examiner of the FSL as a witness. It appears that it dawned upon the prosecution after the examination of almost all the witnesses to lay the motion

in the trial Court seeking permission to call the chemical examiner of the FSL along with report of chemical examination so as to prove the cause of

death of the deceased. It is one aspect of the case.

The other aspect that calls for attention is that the case is wholly based on circumstantial evidence inasmuch as the report of occurrence gave out

that some unkown person(s) took away the deceased only to be found dead on the day following. The trial Court has setout in its order dated 18-

2-97 the circumstances on which the prosecution case ex facie depends; namely :-

that the accused abducted the deceased;

that the dead body was recovered after abduction and

expert opinion as to the cause of death.

Circumstance of the abduction appears to stem from the accusation that the accused had called out the deceased and taken him away. This

circumstance can be said to be that the deceased was seen alive last in the company of the accused.

Recovery of the dead body is not a circumstance to indicate the culpability of the accused because it depends on the cogent proof that the

.deceased was last seen alive with the accused who had a motive to kill the deceased. The motive to commit offence is not only relevant but

assumes significance in the case which depends on the circumstantial evidence. Here in this case the informant has said that he heard the accused

demanding of the deceased to desist from harassing and teasing the latter's wife. Without prejudice to the merits of the case it needs to be kept in

view that the person who set the investigating agency into motion by lodging the FIR did not give out either the identity of the person who allegedly

abducted the deceased or set out the circumstances or the reasons which could have motivated the abduction to commit the offence. It was at the

investigating stage that the informant came out to identify the alleged abductor and disclose the alleged motive for the commission of the crime. I

refrain from making any comment on this aspect of the case and leave it to the trial Court, to consider it in the final analysis. The observation,

however, cannot be resisted that the circumstance of the deceased having been last seen alive with the accused cannot, in the absence of a strong

motive - be said to be sufficient to hold that reasonable grounds exist to believe that the person indicted has commited the offence. I leave the

appreciation of the evidence and the circumstances to the trial Court but suffice it to say that in the nature of the circumstance that only the formal

witnesses are now to be examined, the apprehension of evidence being tampered with by the accused on getting bails is rootless.

Without prejudice to the merits of the case, I find that a case is made out for exercise of the jurisdiction u/s 498, Cr.P.C. in favour of the

accused/petitioner. It is thus that this application is allowed. It is directed that the accused, Bashir Ahmad Shah, shall be released from the custody

in the case if he furnishes a surety bond duly recognised in the amount of Rs. 50,000/- to the satisfaction of the Sessions Judge, Baramulla to the

effect that he will appear on all dates of hearing to be fixed by the trial Court and will abide by the results of the trial. On acceptance of the bail

bonds, the learned Sessions Judge shall Order the release of the accused from the custody.

Before parting with the file, it is put on record that nothing observed or said in this order shall in any way influence the trial Court while deciding

the case.