The main legal point established is that bail is the rule and jail is an exception, and the accused should not be detained as a form of punishment.

JUDGMENT :

1. Petitioner/accused have invoked the jurisdiction of this Court in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred to as the, "Code") for securing bails to them in FIR No. 0053/2021 dated 19.02.2021 registered with Police Station Bari Brahmana for commission of offences punishable under Sections 376 IPC r/w 4/6/7 POCSO Act. It is averred, that petitioners are the citizens of India and permanent resident of UT of Jammu and Kashmir, as such, are entitled to the enjoyment of all the fundamental rights envisaged under part-III of the Constitution of India as well as the other legal and statutory rights framed there under; that the complainant/victim submitted a written complaint to SHO Police Station Bari Brahmana contending therein that when she was on way to Patli Morh from Baroi for recharging her mobile, at the same time two boys, namely, Vishal Bhagat and Vishal Rajput both resident of Rakh Baroi asked her for lift, initially she refused, but later on, on their insisting that she being their local, she agreed to board with them, and thereafter they took her to isolated place where they committed rape upon her; that on the basis of the abovementioned hand written complaint, the Police Station Bari Brahmana arrested them on 21.02.2021 and presently they are injudicial custody in District Jail Kathua. It is moreso averred, that chargesheet against petitioners has been submitted in the court u/ss 376 IPC & 4/6/7 POCSO Act on 17.04.2021, charges have been framed against them by the court of Principal Sessions Judge Samba wherein they are facing trial, prosecution so far has only produced three (3) witnesses including prosecutrix/victim and their statements do not support the prosecution story, petitioners approached the Court of Ld. Principal Sessions Judge Samba for grant of bail who vide order dated 14.07.2022 rejected their bail application, petitioners are young boys of 24 & 23 years of age and have been falsely implicated for the offences which they have not committed, that it is not understandable that the prosecutrix was initially taken to Sub-District Hospital Vijaypur for medical examination but for some reasons her medical examination was not done there, she was not got examined in District Hospital Samba which is at a distance of 10 kms. from Vijaypur, but the medical examination of prosecutrix was got conducted in Sarwal Hospital Jammu outside the jurisdiction of Bari Brahmana Police Station, but despite changing the medical officer police could not get a favorable medical report as doctor Shafiqa Banoo who examined the prosecutrix has clearly mentioned in her report that "there is no marks of violence on any part of the body of the prosecutrix including her private part, no spermatozoa seen, and there is no evidence of fresh intercourse"; that the petitioners are languishing in jail for the last more than 2 years, prayer has been made for grant of bail.

2. Respondent has opposed the bail on the grounds, that the petitioners have committed heinous and grave offences punishable u/ss 376 IPC r/w sections 4/6/7 of POCSO Act, statement of the prosecutrix was recorded by the I/O u/s 164 Cr.pc whereby she has narrated that she was subjected to rape by the petitioners, trial Court has rejected the bail application of the petitioners, due to the gravity and severe punishment for offences attributed to the petitioners, there is every likelihood that the petitioners if enlarged on bail may influence the prosecution witnesses, prayer has been made for rejection of the bail.

3. Mr. Ravinder Sharma. learned counsel while seeking bail for petitioners has vehemently canvassed arguments, that the statement made by the prosecutrix in the trial Court on 02.03.2022 is total contradictory to her statement made before I/O u/s 161 Cr.pc and before the Magistrate u/s 164-A Cr.pc which do not inspire confidence as the same evidence does not link the petitioner with crime attributed to them. It is argued.