SHANKRI DEVI Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) Petitioners have preferred instant petition for review/recalling of the judgment and order dtd. 28/11/2022 passed by this Court in bail application No. 76/2020 titled Smt. Shankri Devi and Anr. Vs. Union Territory of Jammu and Kashmir through Police Station Chassana, whereby, the bail application of the petitioners has been rejected.

(2.) Being aggrieved of and dissatisfied with the impugned judgment/order dtd. 28/11/2022, petitioners have sought it's review on the following grounds.

(3.) Sh. O.P. Thakur learned counsel for petitioners while recapitulating the grounds urged in the memo of review petition, has sought review of impugned judgment/order dtd. 28/11/2022 by canvassing arguments, that on the basis of statement made by complainant PW 1 Bhikam Singh (uncle of deceased) FIR no. 10/2021 was lodged on 22/4/2021 after a delay of 9 days of occurrence on 14/4/2021 when on the said date Bhikam Singh had gone to the house of the petitioners and participated in the post death ceremonies and rituals of deceased Sita Devi and after 19 days statement of PW-3 Ratan Singh (brother of deceased) was recorded on 3/5/2021 before learned Judicial Magistrate Mahore, the said factual position was not considered by the Court in the earlier bail application, therefore the review petition is legally competent and maintainable. It is argued that the regular bail of the petitioners was filed before the trial Court of Principal Sessions Judge Reasi on 23/8/2021 which was rejected on 22/2/2022, thereafter, petitioners filed bail application before this Court, during the pendency of the bail application this court summoned scanned record and when the record was summoned as many as 9 prosecution witnesses i.e. PWs 1, 2, 3, 5, 6, 7, 8, 10, and 11 were examined by the trial Court and their statements were available on record, arguments in the bail application were heard on 28/10/2022 and by that time 4 more prosecution witnesses i.e. PWs-4 Ashok Singh, PW-13 Jarnail Singh, PW-9 Inder Singh and PW-12 Baldev Singh were examined, and when the arguments were heard and the bail application was reserved for orders as many as 13 prosecution witnesses were already examined by the trial Court, but this Court failed to consider the evidence of remaining 8 witnesses, therefore the review petition is maintainable. It is moreso argued that there are only 2 alleged eye witnesses in the case namely PW-1 Bhikam Singh (Complainant) and PW-3 Ratan Singh (brother of deceased), PW-1 Bhikam Singh has turned hostile whereas PW-3 Ratan Singh has stated that he along with his father and other family members had gone to the house of petitioners but did not lodge any complaint to police nor he disclosed anything against accused to any person, his statement was recorded under Sec. 164 CrPC on 3/5/2021 and till then he did not disclose about the alleged occurrence to anybody, he further stated that he had not seen anybody beating the deceased, had PW Ratan Singh actually seen the occurrence he would have disclosed this fact to all the family members on the same day or the next day as well as to the people who gathered on spot where police was very much present, he got his statement recorded after 19 days of occurrence which is sufficient to prove that false case has been concocted against the petitioners. It is argued that the counsel for petitioners submitted that the petitioners being ladies were also entitled to grant of bail in terms of proviso to Sec. 437(1) CrPC, besides this, it was argued that 13 witnesses including material witnesses were examined, even then the application was rejected and it appears that due to oversight the submissions for grant of bail to the petitioners in terms of Sec. 437 CrPC have not been considered, due to oversight this Court referred in the bail order that PW-8 Javeed Ahmad SPO witness to seizure of weapon of offence has not been examined, however, the fact was that the said witness was examined on 17/3/2022 and his statement was on record, this court was under impression that only 5 witnesses were examined on 28/10/2022 when the bail application was reserved for orders, but the fact is that 13 witnesses including the material witnesses were already examined and there was no possibility of influencing the witnesses, rest of the prosecution witnesses were official witnesses, PW-17 Dr. Vikas Bharti was examined on 10/9/2022 in regard the post mortem report of deceased however, Dr. Vikas Bharti has made factually incorrect statement before the Court that he conducted the post mortem as he admitted that the post mortem is in the hands of Dr. Rajiv Salaria, Dr. Vikas Bharti has wrongly written in post mortem report that death was due to throttling, bare perusal of his statement in cross-examination would lead to conclusion that case is of suicide. To support his arguments, learned counsel for the petitioners has relied upon (i) M. M. Thomas-Appellant Versus. State of Kerala and Another [(2000) 1 Supreme Court Cases 666], (ii) Rajender Singh-appellant Versus. Lt. Governor, Andaman and Nicobar Islands and Ors-respondents (AIR 2006 SC 75), (iii) Minu Kumari and Anr-Appellants Versus. State of Bihar and Ors.-Respondents (AIR 2006 SC 1937), (iv) APPCR No. 60/2018 in CRMC No. 58/2014 (Munish Bhatia and anr. Vs. State of J&K and anr., date of order 19/11/2018), (v) Girija Koul-Appellant Versus State and Ors-Respondent [2010 Supreme (J&K) 537] and (vi) Fata-Appellant Versus State-Respondent [1998 Supreme (J&K) 185].