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2022 DIGILAW 255 (JK)

Abid Hussain Mir v. Union Territory of J&K

2022-05-21

SANJAY DHAR

body2022
JUDGMENT : SANJAY DHAR, J. 1. The petitioner has invoked the jurisdiction of this Court under section 439 of the Cr.P.C. seeking bail in a case arising out of FIR No. 143/2019 for offences under section 376, 506 RPC and 4 POCSO Act registered with Police Station, Qazigund. 2. As per the prosecution case, on 22.06.2019, father of the prosecutrix lodged a written report with Police Station, Qazigund, alleging therein that his wife has passed away a few years ago whereas one of his sons is mentally sick and his other two sons are away from home in connection with studies. It was alleged in the report that the petitioner, in his absence, would enter his house for the last one year and would commit sexual intercourse with his minor daughter after extending threats to her. According to the report, the prosecutrix did not narrate the incident to anybody because of these threats. On the basis of this report, the FIR came to be registered and investigation was set into motion. During the investigation, medical checkup of the prosecutrix was conducted and it was found that she was pregnant by eight months. The statements of the prosecution witnesses were recorded and the statement of the prosecutrix under section 164 of the Cr.P.C. was also recorded. After investigation of the case, offences under section 376, 506 RPC and 4 POCSO Act were found established against the petitioner and he was taken into custody, whereafter challan was laid before the court. During investigation of the case, the prosecutrix gave birth to a child. 3. It appears that the petitioner had approached the trial court for grant of bail but the same has been rejected by the trial court vide its order dated 03.08.2021. The record of the trial court reveals that the charges against the petitioner stand framed on 15.10.2019 and statements of as many as five witnesses, out of seven witnesses cited in the challan, have been recorded. 4. It has been contended by the petitioner that he has been falsely implicated in the case and that he is languishing in jail since 12th July, 2019. It is further contended that as per the date of birth certificate collected by the investigating agency during the investigation of the case, the date of birth of the prosecutrix is 21st May, 2001, as such, she was major at the time of the occurrence. It is further contended that as per the date of birth certificate collected by the investigating agency during the investigation of the case, the date of birth of the prosecutrix is 21st May, 2001, as such, she was major at the time of the occurrence. It is also contended that the petitioner had insisted for conducting DNA test of the child so as to show his innocence but the same has not been done till date. Finally, it has been submitted that the petitioner undertakes to abide by all the conditions if this Court grants bail in his favour. 5. I have heard learned counsel for the parties and perused the material on record. 6. Before coming to the merits of the rival submissions made by the parties, it would be apt to notice the principles governing the grant or refusal of bail. The same have been elucidated in a number of judgments rendered by the Supreme Court and this High Court. These principles may be summarized as under: (i) The nature and gravity of the accusation and the exact role of the accused. (ii) The position and status of the accused vis-a-vis the victim/witnesses. (iii) The likelihood of the accused fleeing from justice. (iv) The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice. (v) The possibility of repetition of the offence. (vi) The prima facie satisfaction of the Court in support of the charge including frivolity of the charge. (vii) Stage of the investigation. (viii) Larger interest of the public or the State. 7. In the instant case the petitioner has also been booked for offence under POCSO Act. Therefore, while considering his bail application, we have to keep in mind the provisions contained in the said Act, particularly those contained in Section 29 and 30 of the said Act, which read as under: 29. Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 30. Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 30. Presumption of culpable mental state: (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation - In this section “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. 8. From a perusal of Section 29, as quoted above, it is clear that where a person is prosecuted for committing or abetting or attempting to commit any offence under certain provisions of the Act, a presumption arises that such person has committed the said offence. Similarly, Section 30 raises a presumption of culpable mental state against an accused who is prosecuted under the said Act, which in other words means that once a person is prosecuted under certain offences of POCSO Act, the normal presumption of innocence attached to an accused does not come into play while considering his bail application but then there is no statutory bar to the grant of bail in a case where the accused is prosecuted for offences under a POCSO Act. Each case has to be decided on its own facts and circumstances by applying the well recognized principles for grant of bail as set out by the judicial precedents from time to time. 9. Coming to the facts of the instant case, the petitioner is alleged to have committed rape upon the prosecutrix, who, as per the prosecution case, was minor at the relevant time. 9. Coming to the facts of the instant case, the petitioner is alleged to have committed rape upon the prosecutrix, who, as per the prosecution case, was minor at the relevant time. An FIR in this case has been lodged on 22.06.2019 and as per the school leaving certificate of the prosecutrix, her date of birth is shown to be 21.05.2001, which means that on the date of filing of the FIR, she had attained the age of majority but then as per the prosecution case, the prosecutrix was subjected to sexual assault during the previous year, which that means at the relevant time she was minor but was about to attain the age of majority. 10. It has been contended by learned counsel for the petitioner that the prosecutrix or her family members did not lodge the FIR against the petitioner for months together and that the prosecutrix, as per her own version, did not narrate the incident to any other person until she gave birth to a child. This, according to the learned counsel, clearly shows that the allegations leveled against the petitioner are false. The learned counsel has also contended that during trial of the case, the prosecutrix in her statement, has not given any specific details about the alleged sexual assault committed by the petitioner upon her. According to the learned counsel for the petitioner, the prosecutrix does not even remember the month and date when the petitioner subjected her to sexual intercourse and she does even remember the month in which the petitioner had gone to her house in the absence of her family members. The learned counsel has pointed out contradictions and vagueness in the statement of the prosecutrix recorded during the trial on the vital aspect of the case. 11. Without commenting upon the merits of the contentions raised by the learned counsel for the petitioner on the aforesaid aspects of the matter, lest it may prejudice the case of the prosecution, it does appear that there is some substance in the arguments advanced by the learned counsel for the petitioner. It appears that the petitioner has, prima facie, succeeded in rebutting the presumption of culpability that has triggered against him with the presentation of the challan before the trial court. 12. It appears that the petitioner has, prima facie, succeeded in rebutting the presumption of culpability that has triggered against him with the presentation of the challan before the trial court. 12. Apart from the above, perusal of the trial court record clearly reveals that statements of the most of the prosecution witnesses including the statement of the prosecutrix and her family members have been recorded. It appears that statements of only Doctor, Investigating Officer and certain other formal witnesses are to be recorded. Thus, if the petitioner is enlarged on bail, there is absolutely no chance of the witnesses getting intimidated or there being any apprehension of tampering with the prosecution evidence. The prosecution has not placed on record any material to show that the petitioner is a habitual offender or that in case he is admitted to bail, he is likely to repeat the similar offences. 13. For the foregoing reasons, the 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 date 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 prosecution witnesses. 14. Observations made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as expression of an opinion on the merits of the case. 15. The bail application shall stand disposed of.