Vishal Bhagat vs Union Territory Of Jammu & Kashmir ... on 17 April, 2023

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Jammu & Kashmir High Court

Vishal Bhagat vs Union Territory Of Jammu & Kashmir ... on 17 April, 2023

1. Petitioner/accused have invoked the jurisdiction of this Court in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred to as the, "Code") for securing bails to them in FIR No. 0053/2021 dated 19.02.2021 registered with Police Station Bari Brahmana for commission of offences punishable under Sections 376 IPC r/w 4/6/7 POCSO Act. It is averred, that petitioners are the citizens of India and permanent resident of UT of Jammu and Kashmir, as such, are entitled to the enjoyment of all the fundamental rights envisaged under part-III of the Constitution of India as well as the other legal and statutory rights framed there under; that the complainant/victim submitted a written complaint to SHO Police Station Bari Brahmana contending therein that when she was on way to Patli Morh from Baroi for recharging her mobile, at the same time two boys, namely, Vishal Bhagat and Vishal Rajput both resident of Rakh Baroi asked her for lift, initially she refused, but later on, on their insisting that she being their local, she agreed to board with them, and thereafter they took her to isolated place where they committed rape upon her; that on the basis of the abovementioned hand written complaint, the Police Station Bari Brahmana arrested them on 21.02.2021 and presently they are in judicial custody in District Jail Kathua. It 2 Bail App No. 278/2022 is moreso averred, that chargesheet against petitioners has been submitted in the court u/ss 376 IPC & 4/6/7 POCSO Act on 17.04.2021, charges have been framed against them by the court of Principal Sessions Judge Samba wherein they are facing trial, prosecution so far has only produced three (3) witnesses including prosecutrix/victim and their statements do not support the prosecution story, petitioners approached the Court of Ld. Principal Sessions Judge Samba for grant of bail who vide order dated 14.07.2022 rejected their bail application, petitioners are young boys of 24 & 23 years of age and have been falsely implicated for the offences which they have not committed, that it is not understandable that the prosecutrix was initially taken to Sub-District Hospital Vijaypur for medical examination but for some reasons her medical examination was not done there, she was not got examined in District Hospital Samba which is at a distance of 10 kms. from Vijaypur, but the medical examination of prosecutrix was got conducted in Sarwal Hospital Jammu outside the jurisdiction of Bari Brahmana Police Station, but despite changing the medical officer police could not get a favorable medical report as doctor Shafiqa Banoo who examined the prosecutrix has clearly mentioned in her report that "there is no marks of violence on any part of the body of the prosecutrix including her private part, no spermatozoa seen, and there is no evidence of fresh intercourse"; that the petitioners are languishing in jail for the last more than 2 years, prayer has been made for grant of bail.

2. Respondent has opposed the bail on the grounds, that the petitioners have committed heinous and grave offences punishable u/ss 376 IPC r/w sections 4/6/7 of POCSO Act, statement of the prosecutrix was recorded by the I/O u/s 164 Cr.pc whereby she has narrated that she was subjected to rape by the petitioners, trial Court has rejected the bail application of the petitioners, due to the gravity and severe punishment for offences attributed to the petitioners, there is every likelihood that the petitioners if enlarged on bail may influence the prosecution witnesses, prayer has been made for rejection of the bail.

3. Mr. Ravinder Sharma, learned counsel while seeking bail for petitioners has vehemently canvassed arguments, that the statement made by the prosecutrix in the trial Court on 02.03.2022 is total contradictory to her statement made before I/O u/s 161 Cr.pc and before the Magistrate u/s 164-A Cr.pc which do not inspire confidence as the same evidence does not link the petitioner with crime attributed to them. It is argued, that the statement of PW-2 Meena Kumari (m/o prosecutrix) recorded on 04.05.2022 in the trial court does not 3 Bail App No. 278/2022 inspire confidence as she in her cross- examination has categorically stated that she does not remember whether she alongwith her daughter had gone to Police Station for lodging report or not, she also does not know that at what time and with whom her daughter had come back home from Police Station Bari Brahmana after lodging the report, moreso, the doctor who examined the prosecutrix has clearly opined in her medical report that there is no marks of violence on any part of the body including private part, no spermatozoa seen and there is no evidence of fresh intercourse. It is argued, that the material witnesses of the prosecution viz; the prosecutrix and her mother have been examined and there is no question of influencing the remaining prosecution witnesses, the fundamental principle of criminal jurisprudence that "bail is rule" and "jail is an exception" fully applies to the facts of the case in hand, prayer has been made for enlargement of petitioners on bail on the terms and conditions imposed by this court.

4. Mr. Vishal Bharti, learned Dy. AG, Per-contra, has strenuously opposed the grant of bail to the petitioners by portraying arguments, that the offences u/s 376 IPC & 4/6/7 POCSO Act are grave and heinous in nature and carry punishment upto life imprisonment, when the punishment is severe in nature there is every possibility of the accused absconding and fleeing from justice thereby jeopardizing the prosecution case. It is argued, that the offence of rape is against the weaker sex and society at large, therefore, larger public interest demands that bail may be refused to the petitioners.

5. I have heard Ld. Counsel for parties, gone through the contents of bail application and objections filed thereto by the respondent and have also gone through the relevant law on the subject matter. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the Court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by ld. Counsel for the petitioners in the bail application requires to be examined generally. Petitioners are indicted for commission of offences u/ss 376 IPC 4 Bail App No. 278/2022 r/w Sections 4/6/7 of POCSO Act. Charge sheet has been laid in the court of Ld. Principal Sessions Judge Samba and the charges have been framed against the petitioners which they have denied and have preferred the trial. The prosecution so far has examined only three (3) prosecution witnesses listed in the calendar of witnesses in the charge sheet including the prosecutrix/victim and her mother PW-2 Meena Kumari.

In a case law reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors) this court while granting the bail to the accused persons charged for commission of offences punishable under sections 306/498-A RPC, and while discussing the principles of "prima-facie case", "question of influencing the prosecution witnesses"& "approach of the court in granting bail in non-bailable offences", in paragraphs 17, 18 & 19 of the judgment held as under:-

"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima- facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favor by tempering with the evidence.

18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.

19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.

Ratio of the judgment (Supra) makes the legal proposition manifestly clear, that even if prima-facie case is established, the approach of the court in granting bail should be that the accused should not be detained by way of punishment and regarding influencing of witnesses, the material witnesses 5 Bail App No. 278/2022 viz; prosecutrix and her parents cannot be expected to be win over by the accused.

In another case law reported in 2016(2)J.K.J 702, J&K High Court, [Arjun Katal and Ors. versus State of J&K & Ors.] this Court while granting bail to accused for offences u/ss 498A,304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17,25 & 26 of the judgment held as under:-

B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt.,1989,Section 498A,304B and 306-Dowry death- Grant of bail-Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners- Bar under proviso of Section 497C not attracted- Petitioner husband and mother-in-law in custody for more than one years-Refusing bail nothing but punishing petitioners for alleged involvement in death of deceased -Bal allowed.

17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. There seems substance in the argument of learned counsel for the petitioners that entire evidence implicating the hole family including parents-in-law and brother-in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O did not even investigate whether the brother-in-law was also present in the house during those days or not.

25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court.

26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015. Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the 6 Bail App No. 278/2022 petitioners' tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law.

Ratios of the judgments (Supra) squarely apply to the facts of the case in hand. It is apt to reiterate here, for the last more than two (2) years, petitioners are languishing in incarceration in District Jail Kathua. PW-3 Prosecutrix/victim (age 17 years) though in her examination-in-chief has testified before the trial court, that both the petitioners/accused committed forcible sexual intercourse with her, but in her pungent cross-examination has categorically stated that on 18 or 21st February 2021 petitioners/accused had not committed any wrong act with her and in her written report EXTP-3 lodged with police on 19.02.2021 she has not narrated that during the previous night some wrongful act was done with her by accused. Medical report submitted by Dr. Shafiqa of Govt. Hospital Sarwal Jammu dated 20-02-2021 clearly depict that no injury marks have been seen on breast, neck of the victim, no spermatozoa seen, there is no evidence of fresh intercourse. At this stage, this court can go into the question whether a prima- facie case is established against accused and cannot go into the evidentiary value, credibility and reliability of prosecution witnesses. The material witnesses viz; the prosecutrix and her mother have been examined by the trial court and there is no question of the petitioners/accused to temper the prosecution evidence and intermediate the prosecution witnesses if enlarged on bail. The approach of the court in granting bail in non-bailable offences should be that even if there is a prima-facie case, the accused should not be detained in jail by way of punishment. Whether petitioners/accused are responsible for the commission of rape upon the prosecutrix or not, can be ascertained only during trial. The apprehension of the prosecution that the petitioners would abscond during trial would be taken care by imposing stricter bail conditions. Keeping in view the totality of the circumstances and the discussion made hereinabove, the petitioners who are in custody for the last more than 2 years (since 21.02.2021), and without commenting upon the merits of the case, the petitioners have carved out a strong case of grant of bail in their favor. Accordingly, the bail application is allowed and petitioners/accused are admitted to bail in the sum of Rs. 50,000/- each to the satisfaction of the Registrar Judicial of this Court with a direction to furnish personal bonds of like amounts before the Superintendent/Incharge District Jail Kathua where they are is presently lodged. However, before parting, the following conditions are imposed upon the petitioner:-

7 Bail App No. 278/2022

(i) that the petitioners/accused shall appear before the trial court on each and every date of hearing unless exempted by the trial court;

(ii) that the petitioners/accused shall not directly or indirectly make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing such facts to the Court or to any police officer;

6. Dispose of accordingly. Copy of this order be forthwith provided to the Trial Court/Superintendent District Jail Kathua for information and compliance.

  Jammu:                                                                 (Mohan Lal)
  17. 04.2023                                                                Judge
  VIJAY


                             Whether the order is speaking?     Yes/No
                             Whether the order is reportable?   Yes/No

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Jammu & Kashmir High Court