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2024 Supreme(J&K) 124

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJEEV KUMAR, J.
Waseem Akram & Anr. - Petitioners
Versus
UT Of J. & K. And Anr. - Respondents
Bail App No.60 of 2024
Decided On : 06-05-2024

Advocates Appeared:
For the Petitioners: Mr. P.C. Patnaik, with Mr. Hemant Mishra & Mr. Abid Khan.
For the Respondents: Mr. Pawan Dev Singh, Ms. Deepika Pushkar Nath, With Ms. Zarin Ali & Mr. Gazi Muzamil.

Headnote:

Bail - Matrimonial Dispute - IPC 354, 342, 498, 498-A, 504, 506, 376, 376-D - The court discussed the allegations of abuse, harassment, and torture in a matrimonial dispute. The court analyzed the grounds for seeking bail and the history of the case, including the addition of sections 376 and 376-D of IPC based on the statement of the complainant. The court considered the rejection of anticipatory bail and the subsequent application for regular bail. The court found that the allegations of gang rape were not supported by prima facie evidence and granted bail to the petitioners.

Fact of the Case:

The case involved a matrimonial dispute with allegations of abuse, harassment, and torture by the in-laws. The complainant made allegations of rape and gang rape against the petitioners, leading to the addition of sections 376 and 376-D of IPC to the FIR.

Finding of the Court:

The court found that there was no prima facie or reasonable ground to believe that the petitioners had committed the offence of gang rape. The court noted the complainant's tendency to improvise and make fresh allegations, and granted bail to the petitioners.

Issues: The main issue was whether the petitioners should be granted bail in light of the serious allegations of gang rape and non-cooperation with the investigation.

Ratio Decidendi: The court applied the principle that bail is the rule and jail is the exception, and emphasized the presumption of innocence until proven guilty. The court also considered the complainant's tendency to improvise and the lack of prima facie evidence for the allegations of gang rape.

Final Decision: The court granted bail to the petitioners, subject to conditions, based on the lack of prima facie evidence for the allegations of gang rape and the petitioners' cooperation with the investigation.

JUDGMENT :

1. The petitioners having surrendered before this Court seek bail in FIR No.351/2021 dated 28th October, 2021 under Sections 354/342, 498, 498-A, 504/506 IPC registered at Police Station Bahu Fort, Jammu, as also in offence under Section 376, 376-D of IPC added subsequently to the FIR on the basis of statement of respondent No.2 recorded under Section 164 of Cr. P. C.

2. Before adverting to the grounds urged for seeking bail, it is necessary to state few facts relevant to the disposal of this bail application.

3. Genesis of the entire dispute lies in matrimonial discord between the complainant and her husband Razak Hussain who got married on 23.10.2020 as per Muslim rites and rituals. The accused Bilal Hussain is father-in-law and accused Suraya Bibi is mother-in-law of respondent No.2. The other two accused in the FIR, namely, Waseem Akram and Sahil Chowdhary, who are petitioners in this bail application, are real brother and cousin of Razak Hussain respectively. As is evident from reading of the FIR registered by the police on the basis of a written complaint filed by respondent No.2 before Inspector General of Police, Jammu, the husband of respondent No.2, her father-in-law, mother-in-law and brother-in-law had been torturing, abusing and harassing her from the very next day of her marriage for not bringing enough dowry. The written complaint which was filed before Inspector General of Police, Jammu, on the basis whereof the FIR was registered against the petitioners herein and three others, the respondent No.2, apart from making the allegations of abuse, harassment and torture at the hands of her in-laws, also made a complaint against the petitioners that one day she had gone to kitchen to eat something, the petitioners tried to touch her body in an inappropriate manner. The respondent No.2, who was undergoing depression, ran back to her room and bolted herself from inside. Apart from this, there is no allegation of any sexual assault or rape made by respondent No.2 in her complaint. There is, however, an allegation made against father-in-law and mother-in-law, who, as per complaint of the respondent No.2, took her to a Tantrik in Village Badhori where she was stripped naked by the Tantrik with their help. The unknown Tantrik touched her private parts and applied some oil there. The respondent No.2 in her complaint also refers to an incident of 8th September, 2021. She states that the accused persons including the petitioners herein took her to a God-man in a shrine by the name of Klier Sharief in Uttarakhand. She complains of being abused and beaten by her husband and mother-in-law. She also alleges that she heard the petitioner No.1 telling other accused that they should kill her and throw her here and there will be no witness to the crime. It is here respondent No.2 claims that she somehow managed to reach the roof of the building and after having bolted herself inside, she called her father as well as one Showkat Ali who was responsible for arranging her marriage with Razak Hussain. On the request of father of respondent No.2 and said Showkat Ali, the accused No.1 and 2 brought respondent No.2 back home safely. This is the written version of the complainant about the incident given to the IGP. On the basis of this complaint, FIR No.351/2021 was registered at Police Station, Bahu Fort, Jammu on 28th October, 2021, under Section 354, 342, 498, 498A, 504 and 506 IPC against the petitioners and three others i.e. husband, father-in-law and mother-in-law of the respondent No.2.

4. An anticipatory bail application was filed by all the accused including the petitioners before the Court of Additional District & Sessions Judge, Jammu, which came up for consideration on 5th November, 2021, The Court, while furnishing copy of the application to APP and calling for the police report, also admitted all the accused including the petitioners to interim anticipatory bail. In the meanwhile, on 3rd November, 2021, respondent N

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