Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27917 of 2021 Applicant :- Jabir @ Javid Opposite Party :- State of U.P.
Counsel for Applicant :- Raj Kumar Vaishya
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Raj Kumar Vaishya, learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Jabir alis Javid, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 06.03.2021, passed by Special Judge (SC/ST Act), Bareilly, in Case Crime No.764 of 2020 (Case No. 3412 of 2020), under Section 302 I.P.C., Police Station Baradari, District Bareilly.
3. It was alleged that the applicant was staying in a room at the house of the Informant on rent since 23.07.2020. On 27.07.2020 at about 02.00 AM on hearing repeated shout for help from the room, Complainant and another tenant rushed to the room, where they saw applicant was strangulating his wife. The applicant ran away after pushing the Informant and other tenant.
4. Learned counsel for applicant submits that deceased was not the wife of applicant. Deceased has four children, who were present but Investigating Officer has not recorded their statements. Complainant and his friends had bad intentions towards deceased. Applicant was only visitor to the place and he never stayed in the room. Investigating Officer has recorded statement of witnesses who are friends of Informant. It is also argued that applicant has no criminal history and is languishing in jail since 27.07.2020, therefore, he is entitled for bail.
5. Per contra, learned A.G.A. appearing for State opposed the prayer for bail and submitted that immediate cause of death of deceased is asphyxia due to anti- mortem throttling and hyoid cartilage was found fractured. Complainant (landlord) and Nadeem (other tenant) are the eye witnesses who have witnessed the applicant throttling her wife. Husband of deceased has also stated that the applicant has enticed his wife to stay at a rented room.
6(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner.
(C) The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.
7. Considering the rival submissions and materiel available on record prima facie there was eye witness version of two persons who saw the applicant throttling the lady. Presence of both the witnesses appeared to be natural. Post mortem report indicates immediate cause of death was asphyxia due to anti mortem throttling and hyoid cartilage was found fractured. Even in the dying declaration, direct and specific allegation are on the applicant. Submission of learned counsel for applicant with regard to veracity and admissibility of dying declaration will be tested by the Trial Court and any comment by this Court would affect the out come of trial.
8. So far as the submission with regard to prolong detention is concerned, in case of conviction the sentence which would be awarded is of life imprisonment. As per record, testimony of witnesses of fact has already been recorded, therefore, it appears that trial is at the stage of recording of defence version.
9. Considering that in the present case a lady was murdered by throttling, no case of bail is made out at this stage. However, it is directed that Trial Court shall make all endeavour to conclude the trial preferably within a period of one and half year.
10. Application is accordingly rejected.
Order Date :- 29.7.2021 AK Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.08.03 09:53:42 IST Reason: Document Owner Location: High Court of Judicature at Allahabad