The insufficiency of evidence, delay in trial proceedings, and the applicant's conduct during incarceration are key factors in granting bail.

ORDER :

C. Hari Shankar, J.

Cri. M.A. no. 7307/2020 (exemption)

Allowed, subject to all just exceptions. The application is disposed of.

BAIL APPLN. 1150/2020

1. This is an application for grant of regular bail.

2. The applicant was arrested on 3 September, 2018, and is charged with having committed offences punishable under Sections 302/365/201 read with Sections 120-B/34 of the Indian Penal Code, 1860 (IPC). She has been incarcerated since 3 September, 2018, and has, therefore, spent about one year and ten months behind bars.

3. During the course of these proceedings, an order was passed, by this Court, on 20 August, 2019, directing conclusion of the recording of the evidence of the prosecution witnesses within nine months. As on date, however, it is an admitted position that only 15 prosecution witnesses have been examined, out of 42.

4. Mr. R.N. Sharma, learned counsel appearing for the applicant, submits that the family members of the victim and other public witnesses have been examined, and of the remaining 27 witnesses, the majority are official witnesses.

5. Mr. Sharma also sought to contend that the evidence, in the case, is hopefully insufficient, to sustain conviction of his client. He also highlights the fact that the conduct of his client, during incarceration, has been satisfactory and that she has no previous conviction, or offence, to her credit. He further submits that his client is the mother of a 20 years old unmarried girl, and that, therefore, her continued incarceration is also detrimental to the welfare of her daughter.

6. Ms. Meenakshi Chauhan, learned APP appearing for the respondent emphasizes, on the other hand, the seriousness of the charge against the applicant, and submits that she is under trial for having committed murder. She also submits that the material garnered, thus far, is highly incriminatory in nature, and that conviction, would, most likely, follow. She further submits the fact that the applicant may not have committed any offence in the past is not a valid consideration, while examining her case for bail. Several witnesses, she points out, have yet to be examined, and release of the applicant, at this stage, may seriously prejudice the proceedings in trial.

7. Having heard learned counsel for the applicant and learned APP for the State, this Court is required to bear in mind, at the very outset, the primary fact that the present case is one of pre-conviction incarceration. There is a qualitative difference between a prayer for bail during trial, and a prayer for suspension of sentence, after conviction. As of today, there is no finding, by any competent criminal court, finding the applicant guilty of having committed the alleged offence. Apart from the statement of the applicant under Section 161 of the Cr PC, the evidence against the applicant, on which the prosecution relies, is largely circumstantial in nature, such as the recovery of a blood-stained diary and the cellphone of the deceased from the car of the applicant, and CDR records indicating that she was in the area at the time of commission of the offence. It cannot be said, definitively, that the evidence against the applicant is so clinching, as is likely, in all probability, to result in her conviction. No prima facie view, regarding the applicant's guilt, can be arrived at, without a trial.

8. Unfortunately, it is also a matter of record that, on 20 August, 2019, this Court has specifically directed conclusion of recording of evidence of the prosecution witnesses within nine months, but that even as on date, only 15, out of 42 prosecution witnesses, have been examined. 27 witnesses remain to be examined, which may take any length of time, especially given the present status, when functioning of Courts has been severely impeded by the COVID-2019 pandemic - the applicant is having to undergo incarceration, even before any guilt has been fastened on her. She has, as on date, suffered about one year and ten months behind bars.

9. Ms. Chau