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2020 DIGILAW 121 (JK)

State Through Sho P/s Billawar v. Rajinder Kumar

2020-02-28

SANJAY KUMAR GUPTA

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JUDGMENT CRLM No. 1534/2019 1. The instant application has been filed by the petitioner/applicant for correction of the name of respondent by inserting Sh. Bhushan Singh S/o Romaal Singh R/o Village Dhar Dugnoo Tehsil Billawar, District Kathua, instead of Sh. Rajinder Kumar S/o Chatto Ram R/o Village Dhar Dugnoo Tehsil Billawar, District Kathua. 2. In view of contents of this application supported with an affidavit, the same is allowed. The name of respondent-Rajinder Kumar be read as Bhushan Singh. 3. Application is, accordingly, disposed of. Crl R No. 64/2019 4. This criminal revision petition has been filed by the petitioner challenging the bail granted by the trial court in FIR No. 37/2019 under Sections 376/341/109 RPC . In the revision, it has been stated that the statement of victim recorded under Section 164-A Cr.PC , prima facie shows that she was subjected to rape by Rajinder Kumar, on the false promise of marriage. After completion of the investigation, challan was produced before the trial court against two accused namely Sh. Rajinder Kumar respondent herein and Sh. Bhushan Singh. The brief facts of the case are that victim filed a criminal complaint before Chief Judicial Magistrate, Kathua, who after going through the contents of the complaint directed police Station, Billawar, to proceed in terms of Section 156(3) Cr.PC. 5. In the complaint it was stated that she was a regular student of MCA in Jammu University and came into contact with the petitioner No. 1 in the month of May, 2018 and thereafter they started talking with each other on their mobile phones. On 25.07.2018, she was going on foot from her home situate at Machedi to Jammu, as land slide had blocked the road and on the way when she reached at Nangla near Billawar, in the meantime, both the petitioners came on a motorcycle, which was stopped near her and after a lighting from the motorcycle, petitioner No. 1 Rajinder Kumar forcibly took her in the forest area and committed rape with her, whereas petitioner No. 2 remained standing near the motorcycle. It has further come in her statement that thereafter petitioner No. 1 forced her to board the motorcycle over which petitioner No. 2 also sat as pillion rider and after driving for some distance, she was dropped on a road near Billawar, from where she went to the house of her maternal uncle. It has further come in her statement that thereafter petitioner No. 1 forced her to board the motorcycle over which petitioner No. 2 also sat as pillion rider and after driving for some distance, she was dropped on a road near Billawar, from where she went to the house of her maternal uncle. The petitioner No. 1, after some time, told her on telephone that he wants to solemnize marriage with her due to which she again started conversation with him on her mobile phone on his said assurance. It has also come in her statement that she became pregnant and this fact was narrated by her to petitioner No. 1 on telephone, who sent some medicines through petitioner No. 2 and after consuming the same her pregnancy was terminated. However, after some time the petitioner No. 1, backed down from promise to solemnize marriage with her. The petitioner No. 1 had committed sexual intercourse with her and thereafter made a false promise of marriage with her. 6. During the course of trial, an application for bail was moved by both the accused and vide order dated 17.05.2019, the trial Court granted the bail to Bhushan Singh and dismissed the same with regard to accused Rajinder Kumar. The relevant paras of the said order is reproduced as under: 'In so far as the petitioner No. 2 is concerned, as per police report, he has been found involved in the commission of offence U/Ss 341/109 RPC. As per copy of his date of birth certificate placed on record, his age, at the time of alleged commission of rape with the prosecutrix by petitioner No. 1, was 18 years. He is stated to be a student and was accompanying the petitioner No. 1 on his motorcycle on 25.07.2018. It has been no where alleged in her statement U/s 164-A Cr.PC by the prosecutrix that petitioner No. 2 in any away abetted the commission of rape with her by the petitioner No. 1, though she has stated that petitioner No. 2 provided her some medicines on the asking of the petitioner No. 1, who was at that time posted at Kashmir in Territorial Army, which helped in terminating her pregnancy. In my opinion, ex- facie, involvement of the petitioner No. 2 for the abetment of rape on the prosectrix by the petitioner No. 1 is not made out. In my opinion, ex- facie, involvement of the petitioner No. 2 for the abetment of rape on the prosectrix by the petitioner No. 1 is not made out. Accordingly, petitioner No. 2 is admitted to bail on his furnishing surety bond to the tune of Rs. 30,000/- with a personal bond of same amount, subject to the conditions that he shall not contact the prosecutrix in any manner and co-operate with the investigation and appear before the I.O. as and when required. Any observation made in this order shall have no bearing on the merits of main case. CD was returned to the PP in open Court. Application is disposed of and be consigned to records'. 7. I have considered the fact and circumstances of the case. 8. It is fact that accused respondent herein is not involved under Section 376 RPC. Therefore, while granting the bail to respondent herein, trial court has not exceeded his jurisdiction or exercised the jurisdiction which was not vested to him. Even, otherwise the bail was granted on 17.05.2019 and there is no adverse report against him that he has ever misused the concession granted by the trial Court while granting bail. Therefore, this revision petition is dismissed.