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2021 DIGILAW 54 (JK)

Saif Ali v. Union Territory of J&K

2021-03-04

SANJEEV KUMAR

body2021
JUDGMENT : 1. This is an application filed under Section 437 of CrPC seeking grant of bail to the petitioner in a case FIR No. 50/2019 registered with Police Station, Chanderkote for the offences under Sections 376/506(ii) RPC. 2. Before adverting to the grounds urged by the petitioner to claim bail, it is necessary to take note of the prosecution case. 3. As per the prosecution case, on 05.07.2019, a written complaint was filed by the prosecutrix at Police Station, Chanderkote alleging inter alia therein that she was a resident of Dhalwas, District Ramban and her parents were residing at Jammu. Her marriage with one Mohd. Sadiq son of Saif Ali, petitioner herein, resident of Dhalwas was solemnized about 5/6 years ago. Her husband Mohd. Sadiq is deaf and dumb. About 5/6 months ago, the accused Saif Ali, who happens to be her real uncle (Mama) and father-in-law, asked her to accompany him to Jungle for bringing grass. She claimed that on her refusal, she was beaten and tortured by the accused and was compelled to accompany him to the Jungle where she was raped and threatened not to disclose the incident to anybody, failing which, she would be killed. She also claimed that thereafter she was repeatedly raped by the accused. On the basis of this written complaint, FIR No.50/2019 for commission of offences under Sections 376/506 RPC came to be registered in the Police Station, Chanderkote. 4. During investigation, the statement of the prosecutrix under Section 161 CrPC was recorded. The prosecutrix was also subjected to medical examination. The I/O, after completing the investigation, concluded that the marriage of the prosecutrix was solemnized with the son of the accused who was deaf and dumb. The accused committed rape upon her in the Jungle and also in the house repeatedly for a period of 5/6 months. The allegations levelled by the prosecutrix were, thus, found substantiated by the I/O and, accordingly, challan/charge-sheet was presented in the Court of learned Sessions Judge, Ramban (hereinafter referred to as the 'trial Court') on 16.10.2019. The accused has been charged by the trial Court for the commission of offences under sections 376/506(ii) RPC. The police has arrayed nine witnesses in all and when the bail application was considered by the trial Court, the statement of the prosecutrix had been recorded. Learned counsel for the petitioner submits that one more witness has been recorded. The accused has been charged by the trial Court for the commission of offences under sections 376/506(ii) RPC. The police has arrayed nine witnesses in all and when the bail application was considered by the trial Court, the statement of the prosecutrix had been recorded. Learned counsel for the petitioner submits that one more witness has been recorded. 5. An application was moved by the petitioner before the trial Court on 19.02.2020 which was vehemently opposed by the prosecution. The trial Court, after considering the rival contentions of the parties, came to the conclusion that the petitioner was not entitled to be admitted to bail in a heinous and anti social crime which he had allegedly committed and that long incarceration in jail is no ground to grant the concession of bail. The petitioner is aggrieved by the refusal of bail by the trial Court and, has, thus, filed the instant bail application seeking his release from the custody, inter alia, on the following grounds : (i) that the applicant was arrested on 08.07.2019 and has been in incarceration for the last more than one year and seven months. The petitioner is aggrieved by the refusal of bail by the trial Court and, has, thus, filed the instant bail application seeking his release from the custody, inter alia, on the following grounds : (i) that the applicant was arrested on 08.07.2019 and has been in incarceration for the last more than one year and seven months. When the investigation in the matter has been completed and the challan presented in the competent Court of law, there is no reason or justification to keep the petitioner in custody for an indefinite period; (ii) that the petitioner is about 68 years old and not keeping good health and, therefore it is all the more necessary to let him off from the incarceration; (iii) that the contents of the complaint, FIR, challan and the statement of the prosecutrix recorded under Section 164-A CrPC and the statement recorded in the Court, even if, taken at their face value and accepted in entirety, do not make out the offences with which the petitioner has been charged; (iv) that the FIR registered and criminal proceedings commenced against the petitioner are manifestly attended with mala fide and maliciously instituted with an ulterior motive to cover up the extra marital affair of the prosecutrix; (v) that there has been delay of more than six months in lodging the FIR without there being any cogent acceptable explanation; (vi) that the medical report has not suggested any forcible intercourse and there is nothing in the record to indicate any sign of rape or violence; and (vii) that the case of the prosecution is essentially and solely predicated on the statement of the prosecutrix who has given contradictory versions in her statement recorded under Sections 164-A CrPC and the one recorded before the trial Court during the trial. 6. The bail application is resisted by the respondents. Apart from reiterating the prosecution version of the case, it is submitted that since the offences with which the petitioner is charged are grave and heinous in nature, as such, the petitioner does not deserve any leniency of bail from this Court. It is urged that the offences allegedly committed by the petitioner are not the offences against individual, but impact the society at large. It is urged that the offences allegedly committed by the petitioner are not the offences against individual, but impact the society at large. It is submitted that the prosecution has proposed to examine nine witnesses in support of its case and only the statement of prosecutrix alone has been recorded so far and, therefore, it is too early for the petitioner to claim bail. The prosecution has also voiced its apprehension that the petitioner, if released on bail, may abscond and frustrate the trial. 7. Having heard learned counsel for the parties and perused the record, it is necessary to recollect the principles to be considered while considering an application for bail. 8. The Hon'ble Supreme Court in various judgments handed down from time to time has culled out, inter alia, the following principles : (i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of punishment in the event of conviction; (iv) danger of accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; (viii) danger of justice being thwarted by grant of bail and; (ix) the nature and quality of evidence in support of the charge. 9. When the instant case is examined in the light of aforesaid principles, it is seen that though, there is a serious charge of rape against the petitioner levelled by her daughter-in-law who also happens to be his niece, yet, when her complaint lodged before the police and her statement recorded under Section 164-A CrPC is analysed in the light of her statement recorded in the Court, one would find serious contradictions and prominent shift in the story projected by the prosecutrix. This Court would not like to venture into deep analysis of the evidence so far recorded as the same may adversely affect the case of the parties before the trial Court. This Court would not like to venture into deep analysis of the evidence so far recorded as the same may adversely affect the case of the parties before the trial Court. However, from perusal of the contents of FIR, the statements of the prosecutrix recorded under section 161 CrPC and 164-A CrPC, medical opinion and the statement of the prosecutrix recorded before the Court, it is abundantly clear that the nature of evidence which has come on record and which is likely to come during trial, prima facie, does not inspire confidence and on the basis of such evidence, it may be difficult to establish the charges against the petitioner. No doubt, the offence with which the petitioner is charged is grave and heinous in nature which entails severe punishment, but that alone cannot be a ground to reject the bail. The petitioner, who is now 68 years old and was more than 65 when arrested, is in incarceration for the last more than one year and seven months. Investigation in the matter is complete and the challan has been presented. Out of nine witnesses cited, as per the prosecution, only one witness i.e. prosecutrix has been examined. 10. Admittedly, there is no eye witness to the crime and the only and best witness available is the prosecutrix who has since been examined. Looking to the major contradictions that have surfaced during her examination in the Court vis-a-vis her earlier statements, it is not certain that the trial of the case would definitely end in conviction of the petitioner. The delay in filing of FIR may not always be fatal to the prosecution, but the same, in the absence of cogent explanation supported by the evidence, can make the prosecution case doubtful. I am aware that deep analysis of the evidence at this stage when the Court is considering bail may not be called for, but it is equally important that the nature of evidence collected during investigation or led during trial to support the accusation also cannot be ignored. 11. Otherwise also, we cannot ignore the golden principle of criminal jurisprudence that the accused is presumed to be an innocent until proven guilty and the guilt of the accused can only be established in a trial, to be held by an impartial competent Court of law. 11. Otherwise also, we cannot ignore the golden principle of criminal jurisprudence that the accused is presumed to be an innocent until proven guilty and the guilt of the accused can only be established in a trial, to be held by an impartial competent Court of law. Long incarceration of accused during trial which, in the prevalent criminal justice system, takes undue time to conclude, would be tantamount to imposing pre-trial punishment on the accused. The prosecution has not placed on record any material to indicate that the accused is the person of such character that in case he is enlarged on bail, he will thwart the course of justice by tampering with the prosecution evidence by influencing the witnesses. 12. It is true that the gravity of the offence and the severity of punishment prescribed are the relevant considerations to be borne in mind while considering bail application, but there are other factors which are equally important and cannot be ignored. This is now widely accepted principle of our criminal jurisprudence that the grant of bail is a rule and jail an exception. When the case of the petitioner is examined in the light of aforesaid principles, this Court finds no reason or justification to deny the concession of bail to the petitioners at this stage. The reasoning given by the learned trial Court while rejecting the bail application of the petitioners that the offence alleged to have been committed by the petitioner is serious in nature, cannot be a sole ground for rejection of bail application, more particularly, when the allegations against the petitioners are yet to be established. The trial Court has not taken note of the fact that the petitioner is in jail for the last more than one year and seven months and that the purpose for which he was arrested has been accomplished with the presentation of the challan. 13. For the foregoing reasons, I am inclined to extend the concession of bail to all the petitioner. 13. For the foregoing reasons, I am inclined to extend the concession of bail to all the petitioner. Accordingly, this application is allowed and the petitioner is admitted to bail subject to the following conditions : (i) That he shall furnish personal bond in the amount of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court; (ii) That he shall appear before the trial court on each and every dates of hearing; (iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court; (iv) That he shall not tamper with the prosecution witnesses. Copy of this order be sent to the learned trial Court.