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2007 DIGILAW 56 (JK)

Touseef Ahmad v. State Of J. &K.

2007-04-25

Y.P.NARGOTRA

body2007
1. The accused/petitioner is facing trial in the Court of learned Sessions Judge, Kathua for commission of the offence as contemplated by Section 376 RPC. The case of prosecution against the accused is that on 11.6.2006 at 6:30 PM the prosecutrix in the company of her mother and sister were going to the house of one Farooq Ahmed for fetching seasonal fruit. In the way as the mother of prosecutrix was to attend the call of nature, so she instructed the prosecutrix and her sister to go to the house of said Farooq Ahmed. On reaching there they did not find any one in the house. However, the accused/petitioner, who was living in the neighbourhood, came forward to deliver fruit to them. He took both the girls to the first floor of the house of Farooq Ahmed and asked the sister of the prosecutrix to wait in the varandah. Thereafter, he took the prosecutrix inside the room and committed rape on her. The victim came out from the room weeping, while the accused/petitioner escaped from the spot. The mother of prosecutrix when learnt about the occurrence, she along with the prosecutrix went to Police Station Bani, District Kathua and lodged the report. On the report being lodged, FIR No.10/2006 was registered, which culminated into the filing of charge sheet against the accused for commission of the offence under Section 376 RPC. During the course of investigation, the accused was arrested and presently is on a judicial remand. 2. Before filing of the charge sheet, the accused filed an application for bail before the learned Judicial Magistrate, Ist Class, Bani, who dismissed the same. The accused thereafter filed another application for seeking bail before the Court of learned Sessions Judge, Kathua, who vide his order dated 12.8.2006 dismissed the same. Being not satisfied with the dismissal of his second application by the learned Sessions Judge, the accused/petitioner has filed the instant application in this Court for grant of bail. Heard learned counsel for parties and perused the record. 3. The contention of Mr. Goni is that the bar of granting bail in terms of Section 497 is not applicable to the present case because the accused is not alleged to have committed the offence which is punishable with death or imprisonment for life. He argues that the accused has falsely been implicated in the case. 3. The contention of Mr. Goni is that the bar of granting bail in terms of Section 497 is not applicable to the present case because the accused is not alleged to have committed the offence which is punishable with death or imprisonment for life. He argues that the accused has falsely been implicated in the case. He is a college going student, if is not admitted to bail his career is likely to be ruined. He submits that the case has been concocted and fabricated against the accused at the behest of uncle of the prosecutrix, namely, Abdul Majid Wani, who retired as an Excise Guard and who has two sons, namely, Javed Iqbal and Muzaffar Hussain serving in the Police Department as Constables. According to him, the family of said Abdul Majid Wani has long standing dispute with the family of petitioner/accused, so for settling the score a concocted story of raping a minor girl has been put up. He submits that the prosecutrix, who is said to be 15 years old, was examined by the Medical Board, which on examination found that she was habitual of sexual intercourse and there was no evidence of fresh sexual intercourse as the fluid taken did not indicate the presence of any spermatozoa. Thus, according to him, in the face of negative medical opinion, the possibility of accused having been framed in the case cannot be ruled out and, therefore, is entitled to the grant of bail. 4. On the other hand, the contention of Mr. Bakshi, learned Dy. A.G., is that the accused is facing trial for commission of the offence under Section 376 RPC which is a heinous offence. According to him, the offence is grave because the accused has allegedly raped a minor. He submits that the prosecutrix in her statement, recorded under Section 161 Cr.P.C., has clearly implicated the accused, therefore, merely because the medical opinion is negative, it cannot be said that the case of prosecution is false and fabricated one. Therefore, he submits that the learned trial court was justified in refusing to exercise the discretion in favour of accused. 5. Therefore, he submits that the learned trial court was justified in refusing to exercise the discretion in favour of accused. 5. No doubt the power to grant bail to an accused, who is accused of commission of an offence which is non-bailable and is not punishable with death or imprisonment for life, is in the discretion of the Court, but such discretion must be exercised judicially. The basic rule broadly put is bail and not jail, but where there are factors which justify refusal, the Court should refuse the bail. For granting or refusing bail various circumstances have to be kept in view. Such as whether there is or is not a reasonable ground for believing that the accused/applicant has committed non-bailable offence. If the Court on the alleged facts reasonably feels that the accused may not have committed any non-bailable offence, it should grant the bail, but where prima facie it feels that the accused has committed the non-bailable offence, then it should proceed to see as to whether there are circumstances suggestive of his fleeing from justice or repeating the offence or intimidating the witnesses gatherable from the nature and gravity of the offence, severity and degree of punishment prescribed therefor. If the nature and gravity of offence, severity and degree of punishment prescribed for the alleged offence is such where the possibility of accused fleeing from justice or thwarting the course of justice or intimidating the witnesses etc. can be inferred, the bail should not be granted. This apart, the Court should also keep in view that in the scheme of criminal justice system prevalent generally it is the State and not the victim which prosecutes the offender of law. The victim only assumes the role of a material witness in establishing the commission of crime. At the time of granting bail, though the victim is not before the Court, yet the Court should always remain alive to the nature of sufferings of the victim resulting from the alleged crime because in that lies the larger interest of the public. So where in the larger public interest it is found necessary to keep the accused out of the circulation from the society, then the bail may be refused. 6. In the present case, the accused is alleged to have raped a minor girl. So where in the larger public interest it is found necessary to keep the accused out of the circulation from the society, then the bail may be refused. 6. In the present case, the accused is alleged to have raped a minor girl. Going by the nature of offence and severity of the punishment, the accused does not appear to be entitled to the grant of bail. So it will not be in public interest to allow the accused to move freely and confront his victim day in and day out. From the statement of prosecutrix recorded under Section 161 Cr.P.C., prima facie there are sufficient grounds to presume the involvement of accused in the alleged crime. So far as the question of medical report being negative is concerned, it would suffice to mention that the occurrence took place on 11.6.2006 at about 6:30 PM, whereas the prosecutrix was medically examined on 12.6.2006 at 12:05 PM. The reason as to why the spermatozoa was not found present on the next day of the occurrence can be explained by the doctor when examined during the trial. At this stage, prima facie it cannot be assumed from the medical report that in fact no offence has been committed. Depending upon the circumstances of each case even where the medical evidence is negative, the sole testimony of the prosecutrix may be relied upon for recording the conviction of an accused. At this stage when even the prosecutrix has not been examined, the accused does not deserve bail. Therefore, there is no merit in the application, it is as such dismissed. Before parting with, it is observed that nothing said here would be construed as an expression of opinion on the merits of the case so as to prejudice the accused during trial.