JUDGMENT : 1. Petitioners facing trial in a case arising out of FIR No. 69/2021 registered at Police Station, Udhampur before the Court of learned Additional Sessions Judge, Udhampur and having been charge-sheeted for the commission of offence punishable under Section 376-D IPC on 17.08.2021 and on rejection of their application for grant of bail by the trial Court vide order dated 11.07.2023, have moved this application for grant of bail before this Court. 2. It has been pleaded that the prosecution evidence has been completed, the accused have also been examined in terms of Section 313 CrPC and asked to enter upon their defence; that the medical evidence produced by the prosecution totally falsifies the prosecution story and the version of the complainant/prosecutrix; that there are major contradictions/improvements in the prosecution evidence recorded before the trial Court; that one of the petitioner, namely, Roshan Din is more than 66 years of age having his right arm amputated about eight years ago, as such, the accusation that he was holding arms of prosecutrix is not possible to be believed by his such handicap; that the petitioners had been made to suffer incarceration for the last more than two years though they were innocent and had not committed any offence; that the petitioners have been falsely implicated due to enmity between the families on account of the fact that the sister of the accused/petitioner No.1 had filed a report in the Police Station against her husband Mohd Mushtaq, who happens to be the brother of prosecutrix herein, as such, the case had been managed to settle scores with the petitioners. The petitioners have placed on record copies of the charge-sheet, statements of the witnesses recorded during trial and the medical certificate with regard to the examination of the prosecutrix. Finally, it was prayed that the applicants be admitted to bail. 3. Pursuant to notice, respondent has filed objections to the application asserting therein that the petitioners had been accused and charge-sheeted for the charge of gang rape of a rustic woman of a village and that during the trial, the prosecution has examined almost all the witnesses who have supported the prosecution case, making incriminating statements against all the petitioners to have committed gang rape with the prosecutrix. It has been pleaded that the petitioners are accused of an offence which is grave in nature and in view of the evidence led by the prosecution against them, the petitioners are not entitled to be admitted to bail as the trial court has recently rejected their plea for grant of bail and finally it was prayed that the application be rejected. 4. Learned counsel for the petitioners argued that as per FIR, the date of occurrence has been shown as 5th February 2021 at 6 am, the complainant was stated to have approached a local Police Station on 6th February 2021, SSP Udhampur on 8th February 2021 and thereafter filed a complaint before the Court on 11th February 2021 and produced the copy of the order of the Court at Police Station on 18th February 2021. She has argued that the complainant who is shown to rustic woman has stated in her statement that she had gone to the Police Station on 6th February 2021 after one day to the occurrence alone though her brother is stated to have been present at the place and time of the occurrence. She has further argued that after obtaining order on the complaint on 11th February 2021, it was produced at Police Station by the complainant on her own on 18th February 2021 whereon the case was registered vide FIR No. 69/2021 at Police Station Udhampur for the commission of offences punishable under sections 376-D, 457 IPC. She has further argued that no independent witness was cited by the prosecution though the occurrence was stated to have taken place in the middle of the village at a time when the villagers are available at their houses. She has drawn the attention of this Court to the statements of the complainant/prosecutrix as well as the only eye witness PW-Mohd Mushtaq, brother of the complainant and has argued that the statements of both these witnesses do not inspire confidence so as to record conviction of the petitioner/accused; that the petitioners are entitled to their personal liberty in view of Article 21 of the Constitution of India as they have been suffering incarceration for the last more than two years without any fault on their behalf as they have not committed any offence. It was finally prayed that the petitioners be admitted to bail. It was finally prayed that the petitioners be admitted to bail. In support of her arguments, learned counsel for the petitioners has placed reliance on the judgments of the Apex Court as well as the other High Courts of the Country in cases titled “Satender Kumar Antil vs Central Bureau of Investigation & Anr.”, reported in AIR 2022 SC 3386 , “Sakindar Yadav vs State of Bihar”, reported in Manu/BH/0787/2023 & “Kamaljeet Singh vs State of Himachal Pradesh”. 5. On the other hand, learned Dy AG, ex adverso, argued that the petitioners have been charge-sheeted for a grave offence under section 376-D IPC (gang rape) which on conviction shall entail a rigorous imprisonment of not less than 20 years which may extend to life imprisonment. He has further argued that the prosecution evidence has been completed and case is now posted for recording evidence in defence which is to be produced by the petitioners before the trial Court and since the trial of their case is likely to complete soon, there is no occasion for them to seek grant of bail at this stage. He has further argued that the merits of the case cannot be discussed while deciding bail application and prayed that the application be dismissed. 6. Section 376-D IPC of which the petitioners/accused have been charge-sheeted is extracted as under for ready reference: 376-D.Gang Rape.-Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. 7. Prosecution has completed its evidence before the trial Court and the accused/applicants have also been examined in terms of Section 342 CrPC and have been asked to enter upon their defence. 7. Prosecution has completed its evidence before the trial Court and the accused/applicants have also been examined in terms of Section 342 CrPC and have been asked to enter upon their defence. The star witnesses of the prosecution are the prosecutrix and her brother PW Mohd Mushtaq, both these witnesses during trial had been declared as hostile by the prosecution though it is not appropriate for this court while deciding the bail application to go into the merits of the evidence, however, for the limited purpose of the grant of bail, sifting of evidence is to some extent permissible in the interest of justice. Without minute appreciation of the statements of both these witnesses, it appears from their statements that the complainant and the applicants/accused had a family discard due to the dispute between PW-Mohd Mushtaq brother of the complainant/prosecutrix with his wife, who happens to be from the family of the applicants. The charge against the applicants is that on 5th February 2021 at 6 O’clock in the morning, all the three accused went to the house of complainant/prosecutrix, who assaulted her and one of the accused/applicants Benia Been had penetrated his penis into the mouth of the prosecutrix while the other accused/applicants were holding the prosecutrix from her hands and legs. The accused/petitioners who are in different age group from the age of 36 to 66 years have been accused of having assaulted the prosecutrix and also threshed her presumably to take revenge of the divorce of his wife by PW-Mushtaq Ahmed who is brother of the complainant/prosecutrix as happened to be from the family of accused/petitioners. 8. The Hon’ble Apex Court in a case titled “Dataram Singh vs State of Uttar Pradesh & Anr, reported as 2018(3) SCC 22 ” has held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. 9. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 10. The Apex Court in “Sanjay Chandra vs Central Bureau of Investigation, reported as (2012)1 SCC 49”, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted. 11. The petitioners/accused have been facing incarceration for the last more than two years and are not charge-sheeted for the commission of any offence which is either punishable with death sentence or in the alternative life imprisonment, therefore, there is no statutory Bar to the grant of bail to them. 11. The petitioners/accused have been facing incarceration for the last more than two years and are not charge-sheeted for the commission of any offence which is either punishable with death sentence or in the alternative life imprisonment, therefore, there is no statutory Bar to the grant of bail to them. During trial, the prosecution evidence has already been completed wherein prosecution as well as sole eye witness, have been declared hostile and cross-examined by the prosecution itself credibility of their depositions and false implication requires to be assessed in the backdrop of the aforestated circumstances. No apprehension can be entertained to take a view that the accused on grant of bail may tamper with the prosecution evidence in any manner. The accused, in the considered opinion of this court, are entitled to be admitted to bail in this case, having regard to the facts and circumstances of the case. 12. For the foregoing reasons, observations made hereinabove, Bail Application is allowed and the petitioners/accused are ordered to be admitted to bail on furnishing personal bonds to the tune of Rs.50,000/- each to be attested by the Superintendent of the jail concerned and two sureties in the like amount to the satisfaction of the trial Court, subject to the condition that the accused/petitioners shall appear on each and every date of hearing to face trial before the Court, without any fail. Any deviation of this condition would entail consideration of cancellation of the bail by the Trial Court. 13. Bail application is, accordingly, disposed of.