Shalinder Kumar vs State of J & K

The accused/petitioner is facing trial under Section 302 RPC for having allegedly killed his colleague Ravinder Kumar. The police report under

Section 173 Cr.P.C. reveals that a message from the Police Post, Kota was received on 10.4.2006, wherein it was reported that militants have

fired on the said post as a result of which one of the police officialsdeceased Ravinder Kumar sustained a bullet injury in his leg. The investigation

process initiated by the police concerned unfolded that there was no militant firing on the post, but the accused Shalinder Kumar had fired at the

deceased, as a result of which, he died due to excess bleeding. The report further reveals that deceased had over stayed his leave, which annoyed

the accused/petitioner and there were some heated exchange between the accused and the deceased prior to the incident. In order to establish

complieity of the accused in the crime, certain circumstances were taken note by the Investigating Officer. One of the circumstances was that the

accused intentionally sent one person namely Mudassar, who was on duty as a Sentry for fetching water alongwith SPO Qasim Din and one

Mohd. Ayub to have his meals from the Village. According to the prosecution this was done to obliterate any evidence in respect of the crime,

which the accused has committed. After the Challan was produced, the prosecution has examined 24 witnesses and only 6 witnesses are required

to be examined.

Bail application came to be filed by the accused/petitioner before the learned Sessions Judge, Bhaderwah, wherein it was contended that evidence

of material witnesses, which has come on record, does not link the accused with the commission of crime.

The trial court after hearing the parties dismissed the bail application of the petitioner/accused by taking into consideration the following facts:

a) That the accused/petitioner being involved in the heinous crime of murder can not be granted bail at this stage.

b) The fact that the accused being incharge of the Police Post, Kota had deputed one Mudassar, who was on duty as a Sentry at 6.00 p.m. to

8.00 p.m. on the said date alongwith Sentry Qasim Din for fetching water, when they were to remain on duty on the post.

c) That one more SPO Mohd Ayub was also sent for taking meals

It was during their absence from the police post that Ravinder Kumar was shot at by the accused. This being the fact, the trial court concluded that

there are reasonable grounds for believing that the accused is connected with the crime, as such, can not be entitled to bail under Section 497 sub

Sec. (1) Cr. P.C.

I have heard the learned counsel for the parties and perused the record.

The report under Section 173 Cr. P.C. which has been elaborately mentioned by the trial court in its order reveals that the petitioner/accused had

tiff with the deceased Ravinder Kumar for having over stayed his leave. There was heated exchange between the accused and the deceased, which

led the accused to fire at the deceased. The material witnesses, whom the prosecution has examined namely, Liaqat Ali, Zaffar Hussain, Bashir

Ahmad, Azamal Ali, Mohd Mudassir, Qasim Din and Abbas could directly through light in the case. Out of all these witnesses, two witnesses

namely, Liaqat Ali and Zaffar Hussain are said to be witnesses of the occurrence. Their version reveals that the accused was sitting with them in the

lst Floor at the time, when deceased was hit by a bullet. It is further revealed from evidence that after they heard the fire, both of them alongwith

the accused came down and found that accused was shot at his leg by a fire. It has been stated by these witnesses that at the time when the

deceased received the fire, the accused was with them; impliedly meaning thereby that accused has not opened the fire.

The other witnesses namely, Azamnl All, Mohd Mudassir, Qasim Din and Abbas are not witnesses of the occurrence. They have only stated that

when they heard the fire and reached there, they found that the deceased Ravinder Kumar was hit by a gun shot and the personnel of the police

post including the accused were lifting the deceased for carrying him to hospital. This, in nutshell is the prosecution story, which has been revealed

during course of the trial. Both Liaqat Ali and Zaffar Hussain have been declared hostile, who have been crossexamined by the Public Prosecutor.

The witnesses have stuck to their version that the deceased was in the lower storey of the building and the accused was with them in the 1st floor

at the time of occurrence.

Now coming to the question as to whether the accused is entitled to bail in the present case or not. The following factors are required to be taken

note before granting the bail:

The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

Reasonable apprehension of tempering of the witness or apprehension of threat to the complainant;

Prima facie satisfaction of the court in support of the charge.

While applying these principles, it is not in dispute that the accused is facing trial under Section 302 RPC However, the nature of the accusation as

has come on record reveals that complicity of the accused in committing the crime can not be at this stage considered to be foolproof. I say so for

the following reason:

a) Witnesses to the occurrence, who have deposed namely, Liaqat Ali and Zaffar Hussain have admitted in their version that the accused was

sitting with them when deceased received the gun fire. Only after deceased received the fire, both the witnesses and the accused rushed to the

lower floor of the building where the deceased had sustained gun shot.

This, in my opinion entitles the accused/petitioner for grant of bail at this stage. There is no other evidence, which has come on record contradicting

the version of two witnesses. In other words, there is no other version, which contradicts the version of these witnesses.

In these circumstances, without committing on the merits of the case, 1 direct that the accused/petitioner shall be released on bail, subject to his

furnishing of bail bond to the tune of Rs. 30,000/ (thirty thousands) with one surety of like amount to the satisfaction of the learned Sessions Judge,

Bhaderwah. The accused is granted bail on the following conditions:

i) That the accused will not leave the territorial jurisdiction of Sessions Judge, Bhaderwah without his prior permission.

ii) He will not influence the witnesses, who are yet to be examined.

iii) In case complaint is received, the Sessions Judge, Bhaderwah will be well within its rights to decide the same on its merit and pass appropriate

orders in this regard uninfluenced by the order passed by this court. This application is, accordingly, disposed of.

Record of the trial court be sent down.