Jammu & Kashmir High Court
Munish Sharma Alias Munish vs Ut Of J&K And Another on 13 April, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 31.03.2023
Pronounced on: 13.04.2023
Bail App No. 3/2023
CrlM No. 11/2023
Munish Sharma Alias Munish .....Appellant(s)/Petitioner(s)
Gautam
q
Through: Mr. Rakesh Sharma, Advocate.
vs
UT of J&K and another ..... Respondent(s)
Through: Mr. Suraj Singh, GA.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioner after having been unsuccessful in obtaining the bail from the court of learned Principal Sessions Judge, Reasi (herein after referred to as 'the trial court') has approached this Court for grant of bail in charge-sheet bearing No. 235/2022 dated 15.11.2022 titled "UT of J&K Vs. Munish Goutam" arising out of FIR No. 249/2022 dated 15.09.2022 registered with Police Station, Katra for commission of offences under Sections 376(2)(n), 343, 506, 120-B of IPC and Sections 3(1)(w) and 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short SC/ST Act).
2. It is stated that the petitioner, who is 20 years of age, after having passed 12th standard examination has found himself falsely implicated in a charge-sheet mentioned above pursuant to a well-knit conspiracy of the alleged victim, who is 26 years old divorcee and mother of one male child. It is further stated that FIR bearing No. 21/2022 dated 10.01.2022 for commission of offences under Section 376(2)(n), 343, 2 Bail App No. 3/2023 506, 120-B of IPC and under Section 3(1)(w) and 3(2)(v) of SC/ST Act was registered by Police Station Chidawa, Rajasthan and after completion of the investigation, the matter was placed before the Special Court for SC/ST, Jhunjhunu, which directed the sending of FIR along with other documents to the Police Station, Katra. On receipt of the letter from Superintendent of Police, District Jhunjhunu, SDPO, Police Station, Katra on 06.09.2022 directed for registration of FIR, which was accordingly registered as FIR No. 249/2022.
3. It was on the strength of this FIR that the petitioner was summoned and arrested on 13.11.2022, whereas the other accused were set free on finding that they were not involved in the commission of any offence. The petitioner filed an application for grant of bail, but the same was dismissed by the learned trial court vide its order dated 22.12.2022.
4. The bail is sought by the petitioner on the ground that the FIR was got registered by prosecutrix with the Rajasthan Police after a gap of about 8 months of alleged occurrence and the same is in fact the outcome of a deep rooted conspiracy.
5. Response stands filed by the respondents, wherein it has been stated that after the FIR was received by the Police Station, Katra, the matter was further investigated and the Investigating Officer arrested the petitioner and summoned the father and mother of the petitioner, namely, Madan Lal and Sharda Devi, the maternal aunt- Champa Devi and one friend, namely, Rohan Singh. Rohan Singh, who was later on cited as a prosecution witness. During the course of enquiry, complicity of persons other than the petitioner was not established, as such, offences under Sections 343, 506 and 120-B of IPC were deleted 3 Bail App No. 3/2023 and also no offence under Section 3(2)(v) of SC/ST Act was proved. However, offences under Sections 376(2)(n) of IPC and under Sections 3(1)(w) SC/ST Act stands established against the petitioner. It is further stated that the charge-sheet stands filed and the supplementary charge-sheet after the collecting of FSL report shall be filed separately.
6. Mr. Rakesh Sharma, learned counsel for the petitioner submitted that there is delay in lodging the FIR. The petitioner has been falsely implicated by a lady, who is divorcee and six years older than the petitioner and further that even the charge has been framed against the petitioner.
7. Mr. Suraj Singh, learned counsel for the respondents argued that there are serious allegations levelled against the petitioner, as such, he does not deserve to be enlarged on bail.
8. Heard and perused the record.
9. A perusal of the record reveals that the prosecutrix who is 26 years of age submitted an application to the SHO Police Station, Chidawa through SHO Police Station Airport, Jodhpur and Zero FIR was registered at Police Station Airport Jodhpur. The said Zero FIR was forwarded to SHO Police Station, Chidawa and Police Station Chidawa registered FIR No. 21/2022 under above mentioned offences. In the application, the prosecutrix admitted that she was married in the year 2010 and was divorced five years ago. She was working as a beautician in Riddhi Siddhi Parlour in Chidawa, Jhunjhunu. During that time she got in touch with the petitioner through Instagram, Facebook, Whatsapp and normal call. He told her that he would marry 4 Bail App No. 3/2023 her. She stated that she did not trust anyone so quickly, but he assured her. The aunt of the petitioner asked her to come to Jammu and told her that she would be taken to the mother of the petitioner. She went to Jammu on 13.04.2021 by bus, where she met the petitioner and his friend-Rohan. The petitioner also made her to talk to his aunt and his aunt told her that they must go to Katra. They reached Katra at 02.00 O' Clock by bus. When she enquired about absence of his aunt, the petitioner told her that first of all they would pay homage at Vaishno Devi. Thereafter, they paid homage at Vaishno Devi at about 01.00 O' Clock in the night. At about 04.00 O' Clock, they came down from Bhawan. Thereafter, she went to the hotel with the friend of the petitioner. His friend used to work in that hotel. He brought cooked potato vegetable and Puri for her. She fainted after having the food and when she came to her senses in the morning, the petitioner showed her photographs and black-mailed her to indulge in wrong deeds, otherwise, he would put those photos on Instagram, Facebook and her son would not be able to show his face. After that he forcibly abused her for four days and then asked her to go back to Rajasthan. He also told her that he would marry her. The victim/prosecutrix reached Chidawa on 17.04.2022. Thereafter, she went to Rewari in connection with marriage of daughter of her aunt, where she stayed for 10-15 days. On the asking of petitioner-Munish, she came to Jodhpur in May 2021. She lastly talked to Munish on 28.12.2021. She also talked to the sister of the petitioner and his sister told her that her brother had done wrong and requested her to forgive him. She called the father of 5 Bail App No. 3/2023 the petitioner on 02.01.2022 who told her that his son was not like that and call was disconnected. Her number was also blocked.
10. Statement of the prosecutrix was recorded under Section 164 Cr.P.C on 31.01.2022. Thereafter, learned court for SC/ST, Jhunjhunu ordered for transferring of the case to Katra Police vide order dated 27.07.2022. Thereafter, Rajasthan Police sent the case file to SDPO, Katra on 21.08.2022 and thereafter, FIR No. 249/2022 dated 15.09.2022 was registered against the petitioner. During the course of investigation, offences under Section 343, 506, 120-B of IPC and 3(2)(v) of SC/ST Act were not found to be established against the petitioner and the same were removed. The charge-sheet was filed against the petitioner on 16.11.2022 for commission of offences under Section 376(2)(n) of IPC and under Section 3(1)(w)(i) of SC/ST Act, 1989. Vide order dated 20.12.2022 the petitioner has been charged for commission of offences under Section 376(2)(n) of IPC and under Section 3(1)(w)(i) of SC/ST Act.
11. From the record it is evident that the petitioner has been in custody for the last five months and out of nine prosecution witnesses, six witnesses are official witnesses. The prosecutrix and two others are the only civilian witnesses. The claim of the prosecutrix as per her statement recorded under section 164 Cr.P.C is that she was abused by the petitioner for four days in the Hotel. She has also stated that because of her caste, the accused has refused to solemnise marriage with her. The perusal of the statement of PW-2 Nazmul Shah (Ex. Manager of Hotel) recorded under section 161 Cr.P.C by Police of P/S Chidawa would reveal that the petitioner obtained one room on rent on 6 Bail App No. 3/2023 14.04.2021 and checked out on 15.04.2021 at 11.00 AM. From the record, it further transpires that the FIR was lodged against the petitioner after about eight and a half months of the alleged occurrence, as Zero FIR was registered by Police Station Airport, Jodhpur on 08.01.2022.
12. The prosecutrix all along travelled from Rajasthan to Jammu to meet the petitioner and entered in to Hotel room with the petitioner at night. If the prosecutrix is to be believed then this is a case of false promise to marry and she lodged FIR only when the petitioner refused to marry. It is also not in dispute that the prosecutrix is 26 years old divorcee and mother of one son, whereas the petitioner is 20 years of age and bachelor.
13. Initially, the allegations were levelled not only against the petitioner, but also against his parents, maternal aunt and one of his friends. Except the petitioner, none else was found involved in the commission of offences and were subsequently exonerated by the Police and friend of the petitioner has been cited as a prosecution witness. The allegations levelled against the petitioner are subject to proof during trial. The accused is presumed to be innocent till the guilt of the accused is proved. Without commenting upon the merits of the case and taking in to consideration the peculiar facts and circumstances of the case as mentioned above and further that the charges have been framed against the petitioner, this Court is of the considered view that the petitioner deserves to be enlarged on bail.
14. In view of the above, the petitioner is ordered to be released on bail subject to the following terms and conditions:
7 Bail App No. 3/2023
(i) That he shall furnish bail bonds along with two solvent sureties to the tune of Rs. 50,000/- each to the satisfaction of learned trial court and personal bond of the like amount.
(ii) That he shall not leave the UT of J&K without prior permission of the learned trial court.
(iii) That he shall not contact any of the prosecution witnesses either physically or through any other mode.
(iv) That he shall regularly appear before the learned trial court on each and every date of hearing.
15. Disposed of.
(RAJNESH OSWAL) JUDGE Jammu 13.04.2023 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No.