Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

The petitioner invoked the jurisdiction of this Court under Section 439 CrPC seeking bail arising out of an FIR for offences under Sections 376, 109 IPC and 4 POCSO Act.

As per the prosecution case, the victim along with her father lodged a complaint alleging that the victim, who was aged about 14 years, was sent by her father to the house of the accused who happened to be the husband of the petitioner, for learning embroidery work. It was alleged that after 8 days, the victim came back to her home and two days thereafter, accused called her whereafter the victim started crying.

Further, the father of the victim enquired about the reason for crying and the victim narrated that she had been raped by the accused after making her unconscious.

In view of the above, FIR was registered, and an investigation began.

After investigation of the case, petitioner’s role as an abettor came to the fore and as such, offence under Section 109 IPC was added to offences under Section 376 IPC and 4 POCSO Act.

Later the charge sheet was laid before the trial court against the petitioner and her husband, and they started facing trial for offences under Section 376, 109 IPC read with Sections 4 and 17 of the POCSO Act.

Analysis, Law and Decision

When it comes to offences punishable under a special enactment, such as POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment.

“The provisions of CrPC including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act.” 

The Bench stated that the present application was required to be dealt with by this Court in accordance with the provisions contained in Section 439 CrPC.

Coming to the facts of the present case, the petitioner was alleged to have aided and abetted her husband, the main accused, in the commission of rape upon the prosecutrix, who, as per the prosecution case, was aged about 14 years at the relevant time.

The prosecutrix had clearly implicated the petitioner and her husband in her statement recorded under Section 164 CrPC.

Bench stated that there may be certain contradictions in the statement of prosecutrix recorded during trial of the case when the same was compared with her statements recorded during the investigation of the case, but it is not open to the Court to minutely examine and weigh the evidence at the time of considering the bail plea of the petitioner.

“…the prosecutrix in her statement recorded during her trial, has supported the prosecution case and she has reiterated that she was raped twice by the husband of the petitioner with the aid and assistance of the petitioner.” 

From the perusal of the record, it was clear that the petitioner was involved in the commission of offence under Section 376/109 IPC read with Sections 4 and 17 of the POCSO Act.

“Abetment of an offence carries the same punishment as is provided for that offence. Section 376(3) IPC provides punishment in a case where rape has been committed upon a woman under 16 years of age.”

High Court expressed that,

It is not an ordinary offence where the perpetrator of the crime is a young boy, but it is a case where the perpetrators of the crime happen to be persons aged more than four times that of the age of the victim.

Further, the gap in the age of the accused and the victim made their alleged act more heinous and it showed an element of perversion in the offence alleged.

Hence, merely because the petitioner happened to be a woman it did not entitle her to the concession of bail. 

High Court rejected the bail application. [Zubeeda v. Union Territory of J&K, Bail App No. 8 of 2022, decided on 21-5-2022]

Advocates before the Court:

For the Petitioner(s): Mr. B. A. Bashir, Sr. Advocate. with Ms. Falak Bashir, Advocate

For the Respondent(s): Mr Sajad Ashraf, GA

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