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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Tashi Rabstan, J.
Mohd. Javed & Anr. - Appellant
Vs.
Union Territory of J&K & Anr. - Respondent
Bail Application No. 311 of 2021
Decided On : 29-01-2022
Bail - Offences under Sections 363/376-D/109 IPC and 3/4 POCSO Act - [Sections 363, 376-D, 109 IPC, 3, 4 POCSO Act] - The court considered the allegations of kidnapping and rape, the victim's statement, medical evidence, and the challenging period of COVID-19 pandemic. It found little support for the allegations and concluded that keeping the accused in jail would not serve the cause of justice. The bail was granted with specific conditions.
Fact of the Case:
The bail applications were filed for the commission of offences punishable under Sections 363/376-D/109 IPC and 3/4 POCSO Act. The prosecutrix was allegedly kidnapped and found in an unconscious condition near her house. The petitioners argued that the registration of FIR was due to enmity and that the medical evidence did not support the victim's version.
Finding of the Court:
The court found little support for the allegations of serious violence or injury and noted the absence of prior criminal involvement by the accused. It considered the challenging period of COVID-19 pandemic and concluded that keeping the accused in jail would not serve the cause of justice.
Issues: Allegations of kidnapping and rape, medical evidence, cooperation with the investigation, and the challenging period of COVID-19 pandemic.
Ratio Decidendi: The court considered the lack of support for the allegations, absence of prior criminal involvement, and the challenging period of COVID-19 pandemic in reaching its decision to grant bail.
Final Decision: The bail was granted with specific conditions, and it was clarified that the order should not be construed as an expression on the merits of the evidence in the pending trial.
JUDGEMENT/ORDER :
1. In both the bail applications FIR as well as commission of offences is same, as such both are being taken up together.
2. The petitioners have filed these applications for grant of bail for the commission of offences punishable under Sections 363/376-D/109 IPC and 3/4 POCSO Act in case FIR No.29/2020 dated 12.02.2020 registered at Police Station Bari Brahamana, Jammu.
3. As per the prosecution story, on 12.02.2020, the father of prosecutrix lodged a complained before the Police Station Bari Brahmana, Jammu that his daughter, a student of Class 12th in S.P. Smart School Sarore, boarded school bus from Badhori. She alongwith other students was taken to Vijaypur by another bus by the school for practical examination, but she left the bus at Vijaypur. Thereafter, the prosecutrix boarded a matador for Bari Brahmana, for where she was kidnapped by the petitioners herein. In the morning at about 6:00 AM, the prosecutrix was thrown in the field near their house in unconscious condition. Petitioner/accused Mohd. Javed was arrested on 10.03.2020 and petitioner/accused Zahid Choudhary was arrested on 21.08.2020.
4. Learned counsel appearing for petitioner argued that the petitioners and the complainant party belong to the same community and that the registration of FIR is the result of enmity because the father of victim had strong suspicion that petitioner-Mohd. Javed was instigating his daughter not to marry where she had been engaged. He further argued that the medical evidence does not support the version of victim. Further, as per the statements of victim and her father-complainant, deposed before the trial Court, no prima facie case is coming out against the petitioners herein. Learned counsel prayed that in case concession of bail is considered by this Court, the petitioners herein undertake to abide by all the terms and conditions which may be imposed by this Court.
5. Objections have been filed on behalf of respondent/applicant. While opposing the bail of petitioners, it is averred that the charges have already been framed against the petitioners-accused on 08.03.2021. It is averred that petitioner-Mohd. Javed was enlarged on bail by the trial court but since he was not cooperating with the investigation and overlooked the instructions passed by the trial Court, as such the High Court cancelled the bail orders. It is further averred that the prosecution has already examined two witnesses, i.e., the prosecutrix/victim and her father in the case and that as per circumstances of the case, the offences are well proved against the petitioners-accused.
6. Heard learned counsel appearing for the parties, considered their rival contentions and also perused the xerox record of trial court.
7. Admittedly, petitioner-Mohd. Javed was arrested on 10.03.2020 and he was accorded bail by the learned Sessions Judge on 30.03.2020 on the basis of medical report. However, the bail of Mohd. Javed came to be cancelled by this Court on 04.08.2020 and one of the grounds for cancellation of bail was that he was not cooperating with the investigation and overlooked the instructions passed by the trial Court. After the cancellation of bail on 04.08.2020, petitioner/accused Mohd. Javed is in judicial custody, whereas petitioner/accused Zahid Choudhary was arrested on 21.08.2020.
8. Although the POCSO Act was enacted with the object to protect children from offences from sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for speedy trial of such offences and for matters connected therewith or incidental thereto, yet in the present case the victim in her statement recorded before the trial Court stated her age to be 19 years. Further, charges have already been framed and the prosecution has also examined the victim/prosecutrix as well as her father. Though it is alleged that the victim/prosecutrix was kidnapped by the accused persons on 11.02.2020 after 2 P.M. and she was found near her house in the
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