The J&K High Court Srinagar Bench on Monday granted bail to two men accused of rape & gang rape after noting that the dispute between the respondent No.2 (prosecutrix) and her husband is purely and simply a matrimonial dispute and the respondent No.2 has made reckless allegations only with a view to settle score with her husband and his relatives. Not only the petitioners, the father-in-law, mother-in-law and husband have been roped in by the respondent No.2.
The Court observed that when the matter on hand is considered in the light of settled legal principles governing bails, it is seen that the material on record falls short of persuading this Court to conclude that there is any prima facie or reasonable ground to believe that the petitioners have committed the offence of rape or gang rape. The first version of the incident is available on record in the shape of a written complaint made by none other than respondent No.2 (the prosecutrix). She is, admittedly, a postgraduate in Arts and is well versed with English language. She being the alleged victim of offence is the best person to know about the occurrence and the manner in which it has happened. Her written complaint made to IGP, Jammu, does not indicate anywhere, directly or indirectly, that she was ever subjected to any sexual assault or rape by the petitioners.
There is no allegation of any rape or attempt to rape made by the petitioners or anybody else in Uttarakhand. It is on the basis of this complaint, the police acted and registered subject FIR. The anticipatory bail application filed by the petitioners earlier was dismissed by this Court on the ground that in view of later statement of respondent No.2 recorded under Section 164 Cr. P. C serious allegation of gang rape had been made.
The Supreme Court also did not entertain the SLP against the rejection of anticipatory bail by the High Court but provided that the petitioners would be free to file a regular bail application before the jurisdictional court after surrendering before it. The Supreme Court also granted eight weeks time to the petitioner to surrender, four weeks initially and thereafter it was extended by another four weeks. The Court observed that the least that is permissible to be enquired into is appraisal of the evidence and material on record for the limited purpose of ascertaining as to whether there is any prima facie or reasonable ground to believe that the accused had committed the offence. As discussed hereinabove, the given facts and circumstances of the case and the material on record do not indicate that there is any prima facie or reasonable ground to believe that the petitioners have committed the offence of gang rape.
The manner in which the respondent No.2 has improvised at every stage brings the prosecution case of gang rape against the petitioners in the realm of suspicion. The allegations projected by the respondent No.2 for the first time in her statement recorded under Section 164 of the Code of Criminal Procedure do not inspire much confidence of the Court. It is inexplicable as to why there is not even a whisper about the two incidents of gang rape in her written complaint submitted to the IGP, Jammu, on the basis whereof the FIR was registered and that there is, thus, clear tendency seen in the respondent No.2 to improvise and make fresh allegations involving her inlaws in the heinous offences in a bid to settle score for her disturbed marital life.
The Court w ile granting bail to the accused petitioners noted that it is equally important to keep in mind that bail is the rule and jail is the exception is still regarded as essential element ingrained in our criminal justice system. The Court said that no less important was the presumption of innocence which is regarded as one of the bedrocks of free society and is globally recognised as golden principle of criminal jurisprudence of all civilised nations.
For Petitioners: Mr. P. C. Patnaik, Advocate, Mr. Hemant Mishra & Mr. Abid Khan, Advocates
For Respondents: Mr. Pawan Dev Singh, Dy. AG-for R1., Ms. Deepika Pushkar Nath, Adv. With Ms. Zarin Ali & Mr. Gazi Muzamil, Advocates-for R2.
[Waseem Akram and Anr. v UT OF J&K AND ANR, Bail Application No. 60/ 2024 decided on 06-05-2024]
