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This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution as upheld by the High Court of J&K, while referring to the Judgement of Supreme Court in the case of Satish Jaggi v. State of Chhattisgarh, reported in (2007) 11 SCC 195, through a learned bench of Justice Rajnesh Oswal in the case of Kewal Sharma Vs Union Territory of J&K [Bail App No. 79/2021].

The petitioner was facing trial for commission of offence under section 302 RPC in a challan, tilted, State vs Kewal Sharma arising out of FIR bearing No. 109/2014 for commission of offence under section 302 RPC pending before the 2nd Additional Sessions Judge, Jammu.

Mr. Anmol Sharma, learned counsel for the petitioner has reiterated the grounds those have been taken in the application. He further argued that the material witnesses have been examined and the whole of the case of prosecution is dependent upon the circumstantial evidence and the petitioner is in custody without there being any evidence against him.

Per contra, Mr. Aseem Sawhney, learned AAG, learned counsel for the respondent has vehemently argued that while considering the bail application, the merits are not required to be considered and all the arguments raised by Mr. Anmol Sharma pertained to the merits of the case and as such, in view of the bar contained in section 497 Code of Criminal Procedure regarding the grant of bail in offences exclusively punishable with death or life imprisonment, the petitioner cannot be enlarged on bail.

After hearing both the parties and a perusal of the record, the Hon’ble High Court observed that the case against the petitioner is based upon the disclosure statement and the last scene theory. So far as evidence brought on record is concerned, it is not the case where all the material witnesses have turned hostile and have not supported the prosecution story. This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution. The contentions raised by the petitioner that there is in fact no last scene theory and the disclosure does not connect the petitioner with any crime, pertain to the merits and cannot be considered at this stage. A number of other witnesses are yet to be examined and they include the material witnesses as well with regard to the proceeding of the deceased to the house of the petitioner and stated that “The allegations against the petitioner are serious in nature. More so, the contention of the petitioner that the petitioner is entitled to bail on ground of delay is also not sustainable in view of the fact that it is not the case where the prosecution has not led any evidence, rather the prosecution has examined number of witnesses. Otherwise also, due to corona pandemic all the Courts functioned in restricted manner for the last more than one year. But still the trial court can be directed to conclude the trial expeditiously.”

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Judgment Reviewed by – Aryan Bajaj