Mohammad Yousuf Dar And Others vs State Of J&K

Rajnesh Oswal, J

The petitioners are facing trial in the challan for commission of offences under sections 302/34 RPC arising out of FIR No. 161/2016 pending in the court of Principal Sessions Judge, Bandipora (hereinafter to be referred as the trial court). The petitioners had filed a bail application before the trial court and the prosecution also filed the objections to the said application. After considering the contentions of the rival parties, learned trial court vide order dated 14.06.2019 dismissed the said bail application. After dismissal of the same, the present application has been filed by the petitioners.

Brief facts are that the FIR 161/2016 was registered by the Police Station, Bandipora on 13.11.2016 under sections 302/34 RPC after one Abdul Rehmand Dar S/o Mohammad Sultan Dar R/o. Ilahi Pora, Aloosa, District, Bandipora was murdered during scuffle due to land dispute. It is contended by the petitioners that the prosecution has cited as many as 18 witnesses, out of which 17 witnesses have already been examined and only one witness i.e. Investigating Officer has yet to be examined. It is further contended by the petitioners that the learned trial court has wrongly dismissed the bail application by observing that the majority of the witnesses are to be examined whereas the fact remains that only one witness i.e. Investigating Officer is to be examined by the prosecution. The petitioners have sought the bail on the ground that they are innocent and the prosecution witnesses have not implicated the petitioners in the commission of offence of murder. The petitioners have raised various factual grounds such as the petitioners did not have any dispute with the deceased and also that the petitioner No.1 did not inflict any injury upon the deceased.

Respondent has filed the objections, in which it is stated that the petitioners are facing trial for commission of offence under section 302/34 RPC and there is a bar in granting bail in the offences punishable with death penalty or life imprisonment and also that the material witnesses are yet to be examined.

Mr. Mushtaq Ahmad Dar, learned counsel for the petitioners has vehemently submitted that the petitioners have been in custody for the last three and half years and for the last one year, Investigating Officer has not been examined. Learned counsel further submitted that the bare perusal of the statements of the witnesses reveal that the petitioners are not involved in the commission of offence of murder. Learned counsel has relied upon judgment rendered by this court in case titled Tarlok Chand Mahajan vs State of J&K and also on decisions of Apex Court reported in (2012) 1 SCC (Cri) 979, (2012) 1 SCC (Cri) 681.

On the contrary, Mr. Sheikh Feroz, learned Dy. A. G. submits that all the eye witnesses have been examined by the prosecution and they have not given the clean chit to the petitioners. He also submitted that the prosecution has produced the witnesses without any delay and also that some of the witnesses were examined after the dismissal of the bail application by trial court. He also submitted that Investigating Officer could not be produced due to restricted functioning of courts due to COVID-19 pandemic.

Heard, considered and perused the challan and statement of the witnesses. Challan was received through virtual mode from the concerned court.

There are serious allegations against the petitioners and the offence for which the petitioners are facing trial is punishable with death or life imprisonment. It is evident that out of 18 witnesses, 17 witnesses have already been examined by the learned trial court and only Investigating Officer is to be examined. The prosecution has cited as many as eight eye witnesses and all of them have been examined. I have gone through the statement of the witnesses. Out of eight witnesses, only PW No.1 namely Ghulam Ahmed Bhat has turned hostile. Other eye witnesses have not completely exonerated the petitioners particularly PW Nos. 4 and 5 namely, Mohd Raman Dar and Mohd. Yusuf Dar respectively. This Court cannot appreciate the creditworthiness or truthfulness of their statements while deciding bail application as the same is required to be done during trial. This court has deliberately avoided to evaluate the evidence as the same is neither appropriate nor desirable lest it should prejudice either of the parties at this stage of the fag end of the trial. Whether the evidence led by the prosecution is creditworthy and reliable or not cannot be determined while deciding bail application. In "Kalyan Chandra Sarkar versus Rajesh Ranjan" reported in 2004(7) SCC 528 the Apex Court has held that at the stage of considering bail application detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken.

The judgments those have been relied upon by the petitioners' counsel are not applicable in the present facts and circumstances of the case as in some judgments, eye witnesses had turned hostile and there was no incriminating evidence while in some judgments there was delay in trial and despite numerous opportunities the prosecution had not led evidence. So far as the present case is concerned, the prosecution has almost exhausted the list of witnesses and thereafter due to restricted working in the courts the Investigating Officer could not be examined so there is no deliberate delay on the part of prosecution.

In view of what has been discussed above, the petitioners are not entitled to bail at this stage. The bail application is, as such, dismissed.

The trial court is directed to expedite the trial of the case within the parameters of SOPs prescribed by the High Court of Jammu and Kashmir for functioning of the courts during the COVID-19 pandemic. Nothing stated herein before shall have any bearing upon the merits of the case and observation made if any is solely for the disposal of the present application.