K.S. Sidhu, J.
1. This is an application under Section 439(2) of the Code of Criminal Procedure. 1973(for short. Cr. P. C.) for cancellation of the bail granted to the accused, Ayub Khan and Chand Khan, by the learned Sessions Judge. Jaipur City, Jaipur, and for a further order that they be arrested and committed to custody. The case of the prosecution and the circumstances leading to the filing of this application may be stated as follows.
2. Mst. Khatoon. a young woman, 22 years of age, was found dead in her matrimonial home. No. 3123. Tookhana Hazari Ramgani Jaipur on January 26. 1981, at about 2 P. M. Her husband Ayub Khan, one of the co-accused-respondents, reported her death to the police at 7 P. M., alleging that she had committed suicide by hanging herself with a rope earlier that day between 12 Noon and 2 P. M. He went to the police station. Ramgani in Jaipur City 5i hours after the death of Khatoon carrying a pre-written report with him. The report says that when he returned home at about 2 P. M. he found that:-.The door of my room was bolted from inside. I knocked at the door loudly and repeatedly asking Khatoon to open it. There was no response from inside. On hearing noise other members of our family, namely, my brother Chand. my brother's wife Rabia, and my mother Mst. Shakuran joined me in shouting and asking Khatoon to open the door. There was still no response from inside. Thereafter. I pushed the doors of the window with full force and succeeded in opening them. I looked through the window and saw Khatoon hanging by the neck with a rope tied to a hook in the ceiling. I entered the room and hugged the suspending body of my wife. Meanwhile, my brother Chand also entered the room through the window and opened the door for other members of the family to enter. All began to weep and cry. A little later, some residents of the mohalla reached there, cut the rope and released the dead body from the noose. Khatoon's parents were informed. They also reached there. A letter written in Khatoon's own hand has been recovered from her own pocket....
3. Sub-Inspector Hanuman Singh went to the spot and started inquest proceedings around. 7-30 P.M. that very evening. The Station House Officer joined him a little later. They were busy in investigating into this case till 11-45 P.M. They left there around midnight leaving a police constable behind, to keep vigil for the night of the room where the dead body lay. S. I. Hanuman Singh returned to that room on January 27 morning. Among the articles recovered from the room later that morning is a two-stringed nylon rope. 6' in length, having knots on both ends. A hand written note alleged to have been found lying on the floor near a folding chair was also delivered to him that morning. The writing in the note which is in Devnagri script reads as under:
Aap mujhe muaf karna. Aapki Sireef Khatoon na-aulad. Bachcha paida karna. Translated into English, it purports to be the last wish of the deceased addressed to her husband as follows:-
Please forgive me. your unfortunate issueless Khatoon. Do beget a child.
4. Before the alleged discovery of this note on January 27, S. I. Hanuman Singh had recorded the statements of a number of members of the family of Ayub Khan including the latter on January 26. evening itself. Avub Khan who was employed as a driver in Saudi Arabia since 1977 told him that he had come from there on annual leave for two months on January 1. 1981, and brought with him 400 U. S. dollars and 1236 Saudi Arabian rials which he had deposited in his own name in a local bank. He admitted having withdrawn from Khatoon's bank account a sum of Rs. 14,200 on January 18. 1981. explaining that he needed this money for construction of a verandah, household expenses and for lending to certain relations. He reiterated the version as given in his report lodged earlier that evening making some modification which may be noticed here. Instead of 2 p. m. which was mentioned in the report as the time of his return home, he told SI Hanuman Singh that he returned there at about 1.30 P. M. As for the discovery of the alleged suicide note, which according to his earlier report had been recovered by him from the pocket of his deceased wife, he told SI Hanuman Singh that Aleemuddin had informed him that a chair was lying on the floor below the suspending dead body of Khatoon and that the suicide note had been picked up by him from near the chair. The suicide note was however not recovered by S. I. Hanuman Singh till next morning when as per recovery memo it was delivered to him by Aleemuddin. Avub Khan tried to explain that Khatoon had committed suicide in a mood of depression and despondence arising from her failure to produce a child during her seven years of married life.
5. The post-mortem held on January 27, 1981 revealed that Khatoon died of asphyxia due to pressure in the neck region. Besides a ligature mark 6 1/2'x 1/2' which was superficial, though well defined, on the front part of the neck, the medical iurist found one bruise l'x3/4 on the front part of r.ght leg, one bruise 1' X 1/2' on the medial side of the left leg. and another bruise li'xi' on the right lateral side of the sterno-mastoid in its middle of the dead body. A few abrasions were found on the right lateral side of the neck in addition to a reddish brown colour mark of the size of 2'x1/2' in that region. On seeing the post-mortem report. Dr. Duggar, a retired medical jurist opined that death of Khatoon was homicidal and it had been brought about by strangulation. The doctor who conducted the post-mortem and Dr. Pathak. another medical jurist reported later that 'the possibility of death by strangulation could not be ruled out'.
6. Ayub Khan and Chand Khan were examined by the medical jurist on January 27, 1981 at 12 Noon and 12-20 P.M. respectively. Ayub Khan was found having lesions on the fingers of his right hand, and on fingers and palm of the left hand showing heaped up areas of the skin. Chand Khan had three abrasions on his upper lip and eyes. These injuries were found to be of 24 hours duration. In other words, they could have been inflicted about the time of the death of Khatoon.
7. S. I. Hanuman Singh recorded the statements of a number of persons, other than the members of the family of the father of the deceased, on January 26 and 27. 1981. and recorded the opinion that Khatoon had committed suicide by hanging because she felt frustrated in life on account of having been issuelers. Aggrieved by the attitude of S. I. Hanuman Singh. Imamuddin. one of the brothers of the deceased, approached the District Superintendent of Police, Jaipur with a written representation, signed by a large number of the residents of the locality, alleging that Ayub Khan and his brother Chand Khan had killed Khatoon bv strangulateing her with a rope and that both of them had suffered iniuries in. the act of committing this crime. They also mentioned therein that Shokat (brother-in-law of Ayub), Jubeda wife of Shokat and Shakuran (mother of Ayub) had had a hand in committing this murder. This representation was received in the office of the Superintendent of Police on January 30, 1981. No action appears to have been taken on this representation for several months. Imamuddin was thus driven to file a complaint against Ayub Khan. Chand Khan, Shakuran. Shokat and Zubeda in the court of the Judicial Magistrate having local jurisdiction in the area. The Magistrate took cognizance of the offences under Sections 302-34 and 120B of the Indian Penal Code upon this complaint on April 25, 1981. The Magistrate examined the complainant and recorded the statements of a number of witnesses in the enquiry under Section 202. Cr. P. C. in the months of July and August. 1981. It was under these circumstances that, at long last on August 31, 1981. the station house officer of police station Ramgani, Jaipur took notice of the representation dated January 30, 1981. mentioned above. He registered the case. F.I.R. No. 402 dated August 31. 1981. on the basis of the said representation under Section 302. I.P.C. Investigation, first by the thana police, and thereafter by the C.I.D. continued till May 1983. On completion of the investigation, the police forwarded to the Magistrate concerned a police report under Section 173. Cr. P. C. against Ayub Khan and Chand Khan on May 20. 1983 for record of evidence against them in accordance with the provisions of Section 299, Cr. P. C. stating that both the accused had absconded and that their arrest could not be effected in spite of proceedings against them under Sections 82 and 83. Cr. P. C. Earlier, on October 10. 1981. the Magistrate who had taken cognizance of the offences under Sections 302-34 and 120B, I.P.C. on a complaint by Imamuddin stayed the proceedings of enquiry into the complaint, as required by Section 210. Cr. P. C. as it was brought to his notice that the police had already registered the F.I.R. on August 31, 1981 and started investigation in relation to the offence which was the subject-matter of enquiry by the magistrate. While the proceedings in the complaint thus remained staved, the magistrate kept reminding the police for nearly two years directing them to expedite the submission of the final police report under Section 173 Cr. P. C. The police did not submit their report till May 1983. On December 14. 1982. the learned magistrate passed a well-reasoned order in the complaint case of Imamuddin issuing warrants under Section 204 Cr. P. C. for the attendance in his court of all the five accused to face proceedings under Sections 120B, 114. 302 and 120 of the Indian Penal Code. He passed certain strictures against the investigating officer which in my opinion were richly deserved by the latter. By his order dated, June 28. 1983 the learned Sessions Judge, on a revision petition by the accused, set aside the aforementioned order of the learned magistrate on a hyper-technical view that the proceedings in a complaint, once stayed under Section 210. Cr. P. C. must continue to remain staved till the receipt by the magistrate of the police, report forwarded under Section 173 Cr. P. C. The learned Sessions Judge does not seem to have taken notice of the fact that the report under Section 173 Cr. P. C. had already been received by the magistrate on May 20, 1983. Be that as it may, Ayub Khan and Chand Khan who were fugitives from justice for a long time eventually surrendered themselves in the court on June 30. 1983. On July 2, 1983 they made an application for release on bail under Section 439, Cr. P. C. The learned Sessions Judge also allowed this application on July 8. 1983. and thus ordered the release of both Ayub Khan and Chand Khan on each of them furnishing the requisite bail-bonds.
8. To complete the narration of facts, it may also be mentioned here that after the release of Ayub Khan and Chand Khan on bail on July 8. 1983. the police submitted another report under Section 173. Cr. P. C against Ayub Khan and Chand Khan for committal proceedings under Sections 302 and 201. I.P.C. It is on the basis of the complaint and the final police reports mentioned above that the learned Magistrate passed an order, dated September 6. 1983. committing four of the five accused to the Court of Session for trial under Sections 120. 120B, 114. 302 and 201. I.P.C. Shokat could not be committed simultaneously for he had not yet entered appearance before the learned Magistrate in compliance with the process issued against him under Section 204, Cr. P. C.
9. Turning now to the order, dated, July 8. 1983. whereby the learned Sessions Judge admitted Ayub Khan and Chand Khan to bail, the learned Judge has given two reasons which persuaded him to grant bail in this case involving an offence punishable with death or imprisonment for life. First, the learned Judge raises suggestive question as to why should Ayub Khan and his family members kill Khatoon merely because she was issueless, for he could legally remarry in her life-time and produce children. Now, I have read and re-read the complaint filed by Imamuddin and the report filed by the police under Section 173. Cr. P, C. and find that the prosecution has nowhere alleged that Ayub Khan wanted to get rid of his wife because she was issueless. On the other hand, the motive of the crime as alleged by the prosecution, is that Khatoon had friendly relations with Zaida. the daughter of Abdul Salam and she had been a frequent visitor to the latters house. It is alleged that since there was bad blood between the family of Shokat (brother-in-law of Ayub) and the family of Abdul Salam and both the families had been locked up in Protracted litigation. Shakuran the mother of Ayub and indeed the entire family of Ayub resented the friendly relations between Zaida and Khatoon and the latter's frequent visits to the former's house. It is further alleged that even before the return of Ayub from West Asia to Jaipur on January 1, 1981. Shakuran and others had been ill-treating and beating Khatoon and that she had been beaten even on January 26, 1981 before she was done to death on the even date on the issue of her friendly relations with Zaida, In these circumstances. I am constrained to say that the discussion regarding the so-called motive and the demolition of motive by the learned Sessions Judge in his order sounds blatantly gratuitous and highly artificial. The learned Judge did not care to consider that the real motive, as alleged by the prosecution was entirely different. He did not therefore apply his mind to the prima facie evidence placed before him about the alleged motive of this crime as mentioned above.
10. The second reason given by the, learned Sessions Judge for grant of bail to the accused is equally perverse. He says that the investigation agency has failed to procure expert opinion to the effect that the writing, alleged by the accused to be a suicide note written by the deceased, is in fact not. written by the deceased. The so-called failure of the investigation agency in that behalf cannot, by any stretch of imagination, mean of necessity, that the writing in question is in the handwriting of the deceased. If it is the case of the accused that the disputed writing is in the hand-writing of the deceased, it would be open to them to prove this fact in defence; and. of course it will be the duty of the court to provide all facilities to the accused to enable them to produce such evidence. So far as the prosecution is concerned, it will be presently seen that it is relying on the disputed writ-ins alleging that it is a fabrication by the accused tending to prove their alleged criminal conduct.
11. The law is well-settled that under Section 439, Cr. P. C. the Sessions Judge has a discretion to grant or refuse bail to a person accused of a non-bailable offence, but such discretion, like any other discretion vesting in a court of law, can only be exercised judicially for valid reasons and not arbitrarily or capriciously. Ordinarily, the High Court will not exercise its discretion under Section 439(2) by cancelling a bail granted by the Sessions Judge in favour of an accused, but if bail has been granted to an accused in a non-bailable offence punishable with death or imprisonment for life in a manner which smacks of arbitrariness, capriciousness or perversity, on the part of the court of Sessions granting such bail, the High Court has not merely the discretion but a duty laid on it under Section 439(2). Cr. P. C. to cancel the bail and order the accused to be re-arrested. In State v. Captain Jagjit Singh : 3SCR622 , the Supreme Court cancelled the bail granted by the High Court to a person accused of a non-bailable offence on the view that the High Court had exercised its discretion in an arbitrary manner.
12. It has already been shown that the learned Sessions Judge granted bail to accused Ayub Khan and Chand Khan on grounds which, even Mr. Mathur, learned Counsel for the accused, agreed, are utterly flimsy in nature. Mr. Mathur, however, contended that if the learned Sessions Judge had cared to look into the material on record in the light of the arguments advanced before him he would have discovered sound reasons for admitting the accused to bail. This contention is, in my opinion wholly devoid of merit. I have very carefully scanned the entire material on record and find that it would not justify the grant of bail to the accused. Before. I start dealing with the said material. I must straightway remind myself that this Court must scrupulously avoid making any observation or comment on the veracity of the witnesses and other material collected by the investigation agency. I may also make it clear that if this Court still says something unwittingly which is capable of being construed in such a manner as to influence the course of trial, the trial court will ignore it and proceed to assess and apprise the evidence adduced before it in the trial without paying any regard to the observations of this Court.
13. There is no direct evidence to implicate the accused in the commission of the alleged crime. The evidence collected is circumstantial. It is said to be a case of criminal conspiracy. There is enough material which, if converted into evidence, would prima facie show the existence of a criminal conspiracy and the participation of the accused in it. That being so anything said, done or written by one accused in reference to their alleged common intention is a relevant fact against each under Section 10. Evidence Act. The investigation officer has placed material on the record to indicate that evidence will be produced to prove that Khatoon met with a violent death in a room of her matrimonial home where the accused-respondents were also residing on January 26. 1981. The death occurred around 1.30 P. M. The circumstantial evidence is always of crucial importance on the question as to whether such a death was suicidal or homicidal. Homicidal hanging, according to medical jurist is rare. It is alleged that the hook in the ceiling to which one end of the rope was tied is 10' from the floor. The folding chair which is said to have been found lying below the suspending body of Khatoon is l 1/2' in height. The only other articles found in the room were a godrej almirah lying in one corner and a cot in another away from the hook. One of the medical experts has given opinion that this death is homicidal and was brought about by strangulation. Others say that the possibility of death by strangulation cannot be ruled-out.
14. The conduct of the accused is alleged to be highly incriminatory. The death was not reported to the police for nearly 51/2 hours. A number of the residents of the locality have told the investigating agency that they went to the house of the accused on being told that both Ayub Khan and Khatoon had suffered electric shock and that on reaching the spot they discovered that Khatoon had died by hanging. It is alleged that Avub Khan was not present there and they were told he had been taken to the hospital. The prosecution case is that in fact Ayub Khan had gone to the nearby shop of co-accused Shokat to avoid inconvenient questions, The prosecution has also collected material in an effort t0 prove that though Ayub Khan had money available in his own bank account, he had withdrawn the entire money (Rs. 14,200) from the account of the deceased only a week before Khatoon's death. It is alleged that Ayub Khan and other members of his family resented Khatoon's friendly visits to the house of Zaida and Abdul Salam their enemies and that they had been illtreating her on the score.
15. The written report lodged by Ayub Khan with the police after 51/2 hours of this death is also said to be proof of his incriminating conduct. He mentioned therein that the alleged suicide note had been recovered from the pocket of the suspending dead body of the deceased. He did not produce any such note before the police at the time of lodging the report. No such note was delivered to the investigating officer when he visited the spot on January 26, 1981 at 7- 30 P. M. He did not see any note lying anywhere in the room. The note is alleged to have been delivered to S. I. Hanuman Singh by Aleemuddin on January 27, 1981. stating that he had picked it up from the floor near the folding chair lying below the suspending body on January 26. 1981.
16. The prosecution has also collected material indicating that besides the legature mark on the neck, there were several other marks of ante-mortem iniuries on the legs and neck of the deceased. Both Ayub Khan and Chand Khan were found having injuries on their bodies which in point of duration coincide with the time of the injuries of Khatoon. This, according to the prosecution, indicates resistance by Khatoon to her strangulation by Ayub Khan and Chand Khan. It is further alleged that both the accused remained absconding from early 1981 to middle of 1983.
17. Material is also available in the documents forwarded under Section 173. Cr. P. C. and the enquiry held by the committing Magistrate which if converted into evidence would further tend to show the alleged criminal conduct of the accused. It is alleged that Ayub Khan went to the house of Abdul Latif. the husband of the sister of the deceased shortly after committing this crime and asked him to fix a socket in his water reservoir on the roof. He is said to have told Abdul Latif and his wife that Khatoon was lying fast asleep at that time. Abdul Latif sent his son Arif to see as to what could be done about fixing the socket in the reservoir. Arif's mother advised him not to disturb his mausi in her sleep. Arif went to Ayub's house to see the reservoir but was not allowed to go upstairs by Shokat and Zubeda. Shokat slapped him and sent him back to his house. He did not see Ayub at his house when he returned there. A little later Abdul Latif and his family members heard that Ayub Khan and Khatoon had suffered an electric shock and that Ayub Khan had been removed to the hospital. These are the circumstances which according to the prosecution incriminate the accused as killers of the deceased.
18. Some more witnesses appeared before the learned committing Magistrate in the enquiry in Imamuddin's complaint and the investigation by the police stating that they had seen Ayub Khan about the time of the occurrence in a highly disturbed state of mind. They had gone to demand their money back from him and he had sent them back asking them to come back some other time.
19. If one goes through the material on record which has to some extent been mentioned above, one would not be able to say that there are no reasonable grounds for believing that Ayub Khan and Chand Khan are guilty of killing Khatoon by strangulation. As for the possibility of their absconding in future, the prosecution has placed material on record to show that they remained absconding for nearly two and a half years in the past. Imamuddin says that they have been pressurising the relatives of Khatoon so that they do not give evidence against them. It is alleged that a brother of the accused filed a complaint against Imamuddin and his supporters under Section 456-34, I.P.C. on March 9, 1983. with a view to putting pressure on them not to prosecute the murder case against his brothers. The complaint was dismissed by the court concerned on March 25, 1983. with the observation that the accused were trying to obstruct the course of justice. It is further alleged that the accused have got another complaint filed against Imamuddin and his supporters under Section 107. Cr. P. C.
20. For all these reasons. I am of the considered opinion that both Ayub Khan and Chand Khan should be re-arrested and committed to custody. I would therefore cancel their bail and direct that they be re-arrested and committed to custody. The trial court is directed to expedite the trial and conclude it within a period of four months from today. Any slackness on the part of the prosecution to produce its evidence in the trial would entitle the accused to have the question of bail reconsidered by the trial court or this Court.