The court ruled that the petitioner established reasonable grounds for bail due to insufficient evidence implicating him in the alleged crime.

JUDGMENT :

Bail App No. 68/2023

1. The petitioner, who is facing trial in a case arising out of FIR No.16/2022 for offences under Section 147, 149 and 304 of IPC registered with Police Station, Behibagh Kulgam before the Court of Principal Sessions Judge, Kulgam, has moved the instant application for grant of bail.

2. It is contended in the petition that statements of most of the prosecution witnesses have been recorded by the trial court but they have not supported the prosecution version and in spite of this, when the petitioner approached the Court of Principal Sessions Judge, Kulgam, for grant of bail, the same was rejected by the said Court vide order dated 17.05.2023. It has been submitted that out of 19 witnesses cited in the challan, 09 witnesses are eye witnesses, out of whom 08 witnesses have already been examined by the trial court. It has been further submitted that even as per the report of the FSL, no poison was detected in the viscera of the deceased and, therefore, the story of the prosecution that the deceased had died because the petitioner had sprinkled pesticides in his mouth has proved to be false. It has been submitted that the witnesses who are yet to be examined happen to be the police and Government officials and in case petitioner is enlarged on bail, there is no chance of his tampering with the prosecution witnesses. Lastly, the petitioner has undertaken to abide by the conditions that may be imposed upon him by this Court in the event bail is granted in his favour.

3. The respondents have resisted the bail application, primarily, on the ground that the petitioner has been involved in a heinous crime which has resulted in death of an innocent person, therefore, he does not deserve to be enlarged on bail. It has been further submitted that from the testimony of the witnesses recorded during the trial of the case, involvement of the petitioner in the alleged crime is, prima facie, established. It has been submitted that a number of prosecution witnesses are yet to be examined and in case the petitioner is admitted to bail, he may extend threats to the prosecution witnesses and influence the witnesses which would not be in the interests of fair trial.

4. I have heard learned counsel for the parties and perused the material on record including the trial court record.

5. Briefly stated, the allegations against the petitioner as contained in the challan filed against him before the trial court are that on 30.03.2022, while accused Mst. Mehbooba, Arif Bashir Wani (the petitioner herein) and Umar Farooq Wani were sprinkling pesticides in an orchard, which is joint property of deceased Zahoor Ahmad Wani situated at Village Mochwa, the deceased objected to it, as a result of which there was a scuffle and the accused persons abused the deceased and pushed him with fists and kicks. The deceased was beaten up and the accused persons, after pointing the nozzle of the pesticide sprinkling machine towards him, sprinkled pesticides over his body and mouth whereafter the deceased fell down unconscious. The deceased was taken to the hospital where he was declared as brought dead.

6. Vide order dated 24.08.2022, charges for offences under Section 147, 149 and 304 of IPC were framed against the accused including the petitioner herein and the trial of the case commenced. It appears that out of 19 listed witnesses, 11 witnesses have been examined by the trial court whereas 08 witnesses are yet to be examined. It also appears that the learned trial court has rejected the bail application of the accused on two occasions, firstly on 24.09.2022 and thereafter on 17.05.2023.

7. Before coming to the rival contentions of the parties, it would be apt to refer to the legal position relating to grant of bail in heinous offences like the present one. The Supreme Court in its catena of judgments has culled out the factors that are required to be considered in such cases. These factors include:

1. Whether there is a, prima facie, reasonable gro