Srinagar: The High Court of Jammu & Kashmir and Ladakh Wednesday granted bail to a person allegedly involved in a rape case while observing that there is no prima facie ground to believe that the petitioner has committed the alleged crime.
The court of Justice Dhar noted that the victim in her statement has clearly stated that it was co-accused, Shariq Safdar, who made her to board the vehicle, gagged and kidnapped her outside her school.
Justice Dhar further noted that it is the said accused only who gave a beating to her, tore her clothes and tried to molest her.
The court further recorded that the victim has not imputed any role to other accused, the petitioner Ishfaq Ahmed Khan.
“The only reference by her to both the accused is that she spotted both the accused in a red coloured vehicle when she came out of her school where after she concealed herself behind a truck but accused Shariq Safdar chased her, caught hold of her by her hand, gagged her and put her into the vehicle. She has not attributed any role to the petitioner in these actions,” the writ court noted.
The court also underscored that the father of the victim girl has also stated that he was told by his daughter that it was only accused Shariq Safdar who had kidnapped her and threatened to kill her in case she did not marry him.
A case FIR No.183/2021 for offences under Section 363, 376 511, 323 IPC and Sections 7/8 of Protection of Children from Sexual Offences (POCSO) Act was registered by police station, Kulgam against the accused including the petitioner.
Justice Dhar after considering the material on record remarked that lest it may prejudice the case of the prosecution, it appears that, prima facie, foundational facts that would give rise to the presumption under Section 29 of the POCSO Act against the petitioner, are not established in this case.
“Thus, prima facie, it appears that the presumption of guilt against the accused, in these circumstances, may not get triggered meaning thereby that there is no prima facie ground to believe that the petitioner has committed the alleged crime,” the court said.
Setting aside the order passed by Principal Sessions Judge Kulgam, Justice Dhar said that the Special Judge instead of applying his judicial mind to the material on record has concentrated more on the impact of the alleged crime on women’s education.
The court further said before considering the impact of a crime on the society, a court, while deciding a bail application, has to form a prima facie opinion as to the involvement of the applicant in the alleged crime by applying its mind to the material on record.
On August, 26, 2021, the trial court had rejected the bail plea of the accused on the ground that gravity of offence alleged to have been committed by the accused/petitioner is serious and that if the petitioner is released on bail, it will have adverse impact on the society on large especially in the context of women’s education, her dignity and her empowerment.
It pointed out that the Special Judge while rejecting bail application of the petitioner has not taken trouble to even apply his mind to the statements made by the victim and her father under Section 164 Cr. P. C.
The Special Judge, the court underscored, has proceeded on the assumption that the victim has implicated both the accused in her statement and approached the cases of both the accused without actually appreciating the distinctive features of the roles played by the two accused.
The material on record, as already discussed, clearly distinguishes the cases of the two accused, it noted.
While the victim and her father, the court pointed out, have clearly implicated the co-accused but at the same time, they have stated nothing against the petitioner.
This clear distinction between the cases of two accused has been missed by the Special Judge while rejecting bail application of the petitioner, Justice Dhar pointed out.
Admitting the applicant on bail, the court imposed certain conditions and directed the petitioner to furnish personal bond in the amount of Rs 50000 with one surety of the like amount to the satisfaction of the trial court.
The accused petitioner was also directed to appear before the trial court on each and every date of hearing and not to leave the territorial limits of J&K without prior permission of the trial court.
He was also directed not to tamper with prosecution witnesses.
Meanwhile, the court also made it clear that the observations made in this case shall remain confined to the decision of the instant application only and shall not be construed as an opinion on the merits of the case.