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2018 DIGILAW 250 (JK)

Mohammad Shafi Sheikh v. State of J. K.

2018-04-24

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. On 11.07.2017, at about 8:00 am a girl child aged approximately nine years is alleged to have been exploited sexually by the accused/petitioner herein this petition, in a brick kiln situated at Patlibagh, Budgam. The accused/petitioner is said to have indulged in this gruesome and a horrifying crime at a time when this hapless child was playing. The complainant, Habibullah, father of the girl child reported this occurrence to the Police authorities of Police Station Budgam, by the medium of a written report which swung the police authorities into action and a case for offences U/s. 376, 363 RPC bearing FIR No. 166/2017, was registered against the petitioner, as a consequence of which the investigation commenced. During the course of the investigation of the case, the police authorities came to the conclusion that the girl child/prosecutrix was kidnapped and raped by the accused. The statement of the prosecutrix was recorded U/s. 164-A Cr.P.C. by a local Magistrate. On the conclusion of the investigation of the case the police authorities laid a charge-sheet against the accused before the committal Court which ultimately landed into the Court of Ld. Sessions Judge, Budgam. On 18.09.2017, the petitioner filed an application for the grant of bail in his favour before the Ld. Court of Sessions Judge, Budgam which came to be rejected by an order dated 23.11.2017 of the said court. 2. Aggrieved by the order dated 23.11.2017 of the Court of the Ld. Sessions Judge, Budgam, the petitioner has knocked at the doors of this Court by filing a subsequent application for the grant of bail in his favour on the grounds, inter-alia, that the medical examination of the prosecutrix does not vouch for the commission of rape. No mark of violence has been found on any part of the body of the prosecutrix. A false and frivolous case has been lodged against the petitioner under the heat of vengeance and anger. The statements of the material witnesses have been recorded in the case. The father of the prosecutrix, i.e. the complainant has filed a petition U/s. 561-A Cr.P.C. before this Court wherein he has urged that proceedings initiated against the accused be quashed on the ground that there is no truth or substance in the FIR. The parties have arrived at an amicable settlement. The father of the prosecutrix, i.e. the complainant has filed a petition U/s. 561-A Cr.P.C. before this Court wherein he has urged that proceedings initiated against the accused be quashed on the ground that there is no truth or substance in the FIR. The parties have arrived at an amicable settlement. The prosecutrix has not stated anywhere that she has been subjected to rape and that he will not tamper with the prosecution evidence or flee from the justice, in case he is admitted to bail. 3. The state has failed to file the objections in answer to the instant application, although a number of opportunities have been provided to the Ld. Counsel representing the state. The lackadaisical, inattentive, incurious and indolent attitude of the state in this case which sends shivers down the spine of a man projects a tale of woes. A battery of lawyers has been engaged by the state to conduct and handle the matters in which the state is a party, but one gets dismayed to see that even in cases involving horrifying and serious crimes the approach of the state is abject, dismal and desolate. 4. Heard and considered. 5. The order of the Ld. Sessions Judge, Budgam is lucid and luminous. It does not call for any interference. It is based on the law, logic and the reason. Learned Sessions Judge, has viewed that the accused is involved in a case for the commission of offences U/s. 363, 376 and 354 RPC and the allegations against him are that he kidnapped a girl child aged 09 years, took her to a brick kiln and subjected her to rape. The clothes of the prosecutrix were torn and the statement of the prosecutrix recorded U/s. 164-A Cr.P.C. is the most crucial evidence in the case. He has further stated that it has been empathetically stated by the victim in her statement that she has been subjected to sexual intercourse by the accused. He has proceeded to state that the statement of the prosecutrix recorded by the Court during the trial is in tune and in line with her statement recorded U/s. 164-A Cr.P.C.. 6. Ld. Trial Judge has further contended that the gravity of the offence and punishment are the two fundamental criterion for considering a bail application. He has proceeded to state that the statement of the prosecutrix recorded by the Court during the trial is in tune and in line with her statement recorded U/s. 164-A Cr.P.C.. 6. Ld. Trial Judge has further contended that the gravity of the offence and punishment are the two fundamental criterion for considering a bail application. The likelihood of the accused fleeing from justice and influencing the trial are also the matters of considerable importance. It is also stated that in this case, there being sufficient evidence available on record to suggest the involvement of the accused in offences under Sec. 363, 376 and 354 RPC, the gravity of the offences and the severity of the punishment are the factors which weigh against the granting of the concession of bail to the accused. In sexual offences when there is sufficient evidence available on record pointing out to the probability of guilt of the accused, the courts have to be slow in granting the concession of bail to the accused. The broad probability of the prosecution case leans in favour of the truthfulness of the allegations against the accused and with these observations the Ld. Sessions Judge, has refused and declined to release the petitioner on bail. 7. The crime attributed to the accused is an inhuman one and an animal instinct appears to have taken possession of him. He has sexually assaulted a girl child caring little what bruises he has caused to her. There is prima facie evidence on record to establish the culpability of the petitioner in the commission of the crime imputed to him and therefore, there is every apprehension that in the event of his release on bail he will flee from the justice. The accusation levelled against the petitioner is grave. 8. In the case of "Kapil Dhar v. State" reported in (2016) 1 JKJ 195 , this court while considering the bail application in an offence of rape held as follows:- "It is terrible to see that rape rears its ugly facade almost every day. As per the National Crime Record Bureau, in India, a rape is committed after every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerent and atrocious act committed against the dignity of a woman. As per the National Crime Record Bureau, in India, a rape is committed after every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerent and atrocious act committed against the dignity of a woman. Rape has been held to be even more serious than murder which not only destroys the woman physically but also shatters her inner self by destroying her each living moment emotionally and psychologically. Rape is a crime against one's mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protested to condemn these barbaric act and raised a voice to curb the said menace by inflicting more severe punishment." 9. Risking repetition, it needs must be said that the learned trial court has in his order delineated all the details germane to the determination of the grant of bail by express reasons and the trial court has come to the conclusion that the petitioner does not deserve to be admitted to bail. Rape is a barbaric act and societal concerns have to be gauged and calibrated as these are of paramount importance and consideration. The ferocity of the crime alleged to have been committed by the petitioner, the nature of accusation levelled against the petitioner and the prima facie evidence in support of the accusation are the determining factors that bring the case of the petitioner within the ambit, range and definition of a barbaric and a heinous offence and, therefore, the petitioner cannot be given the concession of bail in an offence like the present one. 10. The argument of the learned counsel for the petitioner that there are some contradictions in the case and, therefore, the petitioner is liable to be admitted to bail is an argument in despair. This Court cannot dig holes in the prosecution case and find out the contradictions or their effect on the case. 10. The argument of the learned counsel for the petitioner that there are some contradictions in the case and, therefore, the petitioner is liable to be admitted to bail is an argument in despair. This Court cannot dig holes in the prosecution case and find out the contradictions or their effect on the case. It is within the exclusive domain and power of the trial Court to appreciate the evidence in the right perspective at the culmination of the trial and this court does not have the power or authority to do so at this stage. 11. The contention of the Ld. Counsel for the petitioner that the parties have arrived at an amicable settlement is all the more damaging for the petitioner as in such a situation, it has to be presumed that an endeavor is made to win over the witnesses cited in the prosecution case. Section 376 RPC is non-compoundable. It falls within the category of cases where the law does not permit it to be settled on the wishes of the parties. It is a wrong done against the state and the society. Therefore, this argument is also a specious one. 12. The up-shot of the above discussion is that, the application of the petitioner is devoid of any merit. It entails dismissal as a consequence of which the same is dismissed. The learned Trial Court shall not get swayed by any observation that has been made by this Court in determining the petition. The case shall be decided on its own merit. A copy of this order shall be sent to the Ld. Chief Secretary of the State so that he can take a stock of how casual the state deals with the matters that are serious and sensitive. 13. The Petition U/s. 561-A Cr.P.C. shall be delinked and shall come upon 9th of May, 2018 for further arguments.