Nassurullah Khan vs Union Territory of J&K

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 393

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Rajnesh Oswal, J.
Nassurullah Khan and Ors. – Applicants
Versus
Union Territory of J&K and Anr. – Respondents
Bail App No.91/2021, CrlM No.1066/2021 and CrlM No.1065/2021
Decided On : 28-07-2021

Advocates:
Advocate Appeared:
For the Applicant :Mr. Gagan Basotra, Sr. Advocate with Ms. Navdeep Kour, Advocate
For the Respondent: Nos.1 and 2 Mr. Adarsh Bhagat, GA
For the Respondent(s) No.3 Mr. A.M. Malik, Advocate

Headnote:
Code of Criminal Procedure, 1973-Section 439-Indian Penal Code, 1860-Section 304-Bail application-There is no charge against petitioners for use of any arm in occurrence and rather story projected by complainant initially in his report was belied by Investigating Officer-As per the allegations deceased died during scuffle and as per post mortem report, deceased died because of Cardio Pulmonary Arrest as he was already suffering from Pre-existing coronary Atherosclerosis-Said disease was aggravated by sudden physical exertion leading to cardiac arrest-There was land dispute between parties and initially two more persons were involved in FIR, who were subsequently found innocent by Investigating Officer-More so, it is not forthcoming from record that petitioners knew that deceased was suffering from such type of disease and by indulging in such occurrence, death of deceased has been caused by petitioners. (Paras 11 and 16)
Result-Bail Application allowed.

ORDER :

Rajnesh Oswal, J.-The present bail application has been filed by the petitioners seeking bail in the challan titled “U.T. of J&K vs Nasarullah Khan & Ors” pending before the learned Sessions Judge, Poonch (hereinafter to be referred as the trial court) arising out of FIR bearing No. 74/2020 of Police Station, Surankote for commission of offence under section 304 IPC, on the ground that they have not committed any offence and the medical evidence would clearly show that the petitioners are not involved in any offence.

2. It is contended in the petition that Mohd. Alam, deceased died in his own house as a natural death. It is further stated that out of 28 witnesses, statement of 08 witnesses have been recorded and one witness has turned hostile and further that the witnesses examined by the prosecution till date do not make out a case against the petitioners and also that the petitioners have filed an application before the learned trial court for admitting the statement of the witnesses PW Nos. 17, 18, 19, 20, 22, 25 and 26. The petitioners had moved an application for grant of bail before the trial court but the learned trial court without appreciating the contentions of the petitioners has rejected the bail application vide order dated 23.01.2021.

3. Response stands filed by the respondents 1 and 2, in which it is stated that the petitioners have committed a heinous offence, as such, they are not entitled to bail. It is further stated that the evidence cannot be appreciated while considering the bail application and further that the petitioners may influence the important witnesses of the case.

4. Mr. Gagan Basotra, learned senior counsel appearing for the petitioners has vehemently argued that the report of post mortem would show that there are no external or internal injuries on the body of the deceased and cause of death of the deceased is mentioned as ‘Cardio Pulmonary Arrest’. He further argued that the petitioners were falsely implicated as is evident from the fact that besides the petitioners, initially allegations were leveled against two more persons, who were subsequently found innocent by the Investigating Officer and also the claim of the complainant/respondent No. 3 herein that the petitioners were armed with Lathis, Axe and stones, is belied by the Investigating Officer with its positive finding that no weapon of offence was found by him and that the accused were not armed with lathis and axes.

5. Per contra, Mr. Adarsh Bhagat, learned GA appearing for the official respondents has argued that there are chance of tampering of evidence as other important witnesses, are yet to be examined and that the evidence cannot be appreciated at this stage.

6. Mr. A. M. Malik, learned counsel appearing for the complainant/ respondent No. 3 herein, has vehemently argued that the petitioners are guilty of heinous offence and the evidence led by the prosecution cannot be appreciated by this Court while granting bail.

7. Heard and perused the record.

8. Briefly stated, on 30.05.2020 the complainant, namely, Sikandar Hayat Khan, respondent No. 3 herein, lodged a written complaint against the all the petitioners as well as Kramatullah Khan and Amanullah Khan, in which it was stated that on 10.00 AM, he and his father Mohd. Alam and Uncle, Faiz Alam Khan went to sow the maize crop in a land purchased by Faiz Alam Khan. The accused had hidden themselves in the said land and as soon as they went into the land, the accused told that they would not permit them to sow the maize crop. When they tried to come back, the accused attacked his father in a brutal manner and he died on spot. The accused persons were armed with lathis, Axes and stones and thereafter the accused attacked the complainant as well as his uncle to kill them but they saved their lives by running away. Some people after hearing the noise came on spot and stopped accused, otherwise the accused persons would have killed them. Pursuant to this complaint, FIR bearin