The court highlighted the presumption of innocence, the right to personal liberty, and the discretionary nature of bail in balancing the interests of the accused and the society.

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