J&K and Ladakh HC grants bail to relatives accused of gang rape; Takes note of woman’s tendency to improvise allegations involving her in-laws in heinous offences

Jammu and Kashmir and Ladakh High Court

Jammu & Kashmir and Ladakh High Court: While deciding the instant bail application wherein the petitioners sought bail on the ground that the allegations of rape and gangrape levelled against them by the 2nd Respondent are totally false and frivolous, the Bench of Sanjeev Kumar, J.*, held that denial of bail to the petitioners who had surrendered before the Court would not serve justice and therefore, the Court granted conditional bail to the petitioners. The Court further took note of the 2nd Respondent’s tendency to improvise and make fresh allegations involving her in-laws in heinous offences in a bid to settle score for her disturbed marital life and that the Police did not bring to Court’ notice any material to show that the petitioners are influential persons who, if released on bail, will influence the investigation.

Background and Legal Trajectory: The origin of the dispute between the parties lies in the matrimonial discord between the 2nd Respondent and her husband who got married on 23-10-2020 as per Islamic rites.

She had filed a written complaint before the police accusing her husband and in-laws of dowry related torture and harassment. She further alleged that the petitioners and her in-laws took her to tantrik and godman’s shrine, where she was stripped naked.

The Police filed an FIR based on the written complaint. At the time making the written complaint, the 2nd Respondent did not allege any instance of sexual assault or rape.

On 03-11-2021, when the 2nd Respondent had to get her statement recorded before the Magistrate under Section 164 of CrPC, for the first time ever since filing the written complaint, she alleged the incident of rape and gang rape by the petitioners and on the basis of her statement, Sections 376 and 376-D of Penal Code, 1860 (IPC) were added against the petitioners.

The petitioners failed to secure anticipatory bail. Aggrieved, they approached the Supreme Court, whereby they were granted interim protection from arrest subject to the condition that they shall continue to cooperate with the investigation. Upon final consideration of the SLP by the Supreme Court on 11-01-2024, Court, after hearing both the sides, dismissed the SLP but granted four weeks’ time to the petitioners to surrender before the jurisdictional court as and when the bail application is filed. There was a further direction given to the jurisdictional court to decide the bail application, if any filed by the petitioners, within a period of two weeks.

The petitioners filed regular bail application under Section 439 of CrPC before the Court of Sessions Judge (jurisdictional court), Jammu. However, the jurisdictional court refused to grant regular bail to the petitioners.

Aggrieved with the afore-stated refusal, the petitioners approached the Court with the instant application. The petitioners also surrendered before the High Court.

Contentions: The petitioners who are brother and cousin of 2nd Respondent’s husband, pleaded that there is no material on record to believe that the petitioners have committed the offence under Section 376/376-D IPC.

The counsel for the petitioners also submitted certified copy of the statement of 2nd Respondent recorded in a petition filed under Domestic Violence Act, wherein she had accused her father-in-law of raping her.

Per contra, the respondents argued that that the petitioners should not be granted bail due to heinous nature of the crimes. Committed. Furthermore, it was argued that petitioners have not only violated the orders of the Supreme Court by not surrendering before the jurisdictional court for seeking regular bail but they have also failed to cooperate with the police and, therefore, have rendered themselves disentitled to the concession of bail. It was submitted that FIR is not an encyclopaedia therefore, the prosecutrix or the first informant is well within his/her rights to explain and elaborate what is contained in the FIR.

It was submitted that contradiction between FIR and the statement of 2nd Respondent recorded under Section 164 of CrPC cannot be taken to mean that the charges against the petitioners are frivolous and unsustainable.

Court’s Assessment:

Perusing the decision of the jurisdictional court, the High Court noted that jurisdictional court has rejected the application of the petitioners on two counts, one that the allegations of gang rape against the petitioners are too grave and serious to admit the petitioners to bail and that the petitioners have not surrendered before the court in compliance with the directions of the Supreme Court and, therefore, do not deserve to be enlarged on bail.

However, it was pointed out that the bail application filed by the petitioners under Section 439 Cr. P. C was entertained by jurisdictional court on 9-03-2024, which goes a long way to show that the petitioners were present in the Court on the said date. Application under Section 439 Cr. P. C for grant of anticipatory bail could not have been entertained by the jurisdictional court without the petitioners first having surrendered. The jurisdictional court could have simply dismissed the bail application on the ground that regular bail application would not be maintainable unless the petitioners were either in custody of the police or surrendered before the court. therefore, the Court opined that the petitioners were all along present in the jurisdictional court during the course of hearing of the bail application.

Relying on plethora of Supreme Court precedents wherein it has been elaborated that “bail is the rule and jail is the exception” is an essential element ingrained in Indian criminal justice system. No less important is the presumption of innocence which is regarded as one of the bedrocks of free society and is globally recognized as golden principle of criminal jurisprudence of all civilized nations.

Taking note of allegations levelled by the 2nd Respondent, it was pointed out that the first version of the incident is available on record in the shape of a written complaint. 2nd Respondent being the \ victim of the alleged offence, is the best person to know about the occurrence and the way it had happened. However, her written complaint did not indicate anywhere, directly or indirectly, that she was ever subjected to any sexual assault or rape by the petitioners. From reading of the entire complaint, the Court found that only an allegation made by 2nd Respondent was that on one day she was going to kitchen for meals, there was an attempt made by the petitioners to touch her inappropriately. She ran away and locked herself in a room. She did not allege any rape or attempt to rape by the petitioners.

Perusing the statement of 2nd Respondent recorded under Section 164 of CrPC, the Court noted that it clearly comes out that the 2nd Respondent had levelled fresh allegations against the petitioners of having committed rape upon her twice, once in Jammu and thereafter in Uttarakhand without explaining as to why she did not refer to these incidents in her written complaint made before IGP, Jammu, which became basis of the FIR. The Court noted that the 2nd Respondent did not even give the exact date, time and place of the alleged incidents.

The Court stated that FIR is not an encyclopaedia, however, distinction needs to be drawn where the first informant is a victim. It is equally significant to bear in mind the distinction between elaboration and improvisation. While elaboration of what is stated in

the FIR by the first informant at the time of recording his/her statement is permissible, the same is not true of improvisation which has the result of creating a new offence against the person accused in the FIR. It was further stated that the Court cannot hold a mini trial to find out as to whether the evidence of record is sufficient to warrant conviction of the accused. However, it is permissible to enquire into appraisal of the evidence and material on record for the limited purpose of ascertaining as to whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.

Considering the instant matter in the light of settled legal principles governing bails and FIR, it was noted that the material on record falls short of persuading the Court to conclude that there is any prima facie or reasonable ground to believe that the petitioners have committed the offence of rape or gang rape.

The Court particularly took note of the manner in which the 2nd Respondent had improvised at every stage, thereby bringing the prosecution case of gang rape against the petitioners in the realm of suspicion. The allegations projected by the 2nd Respondent for the first time in her statement recorded under Section 164 of the CrPC, did not inspire much confidence of the

Court. It is inexplicable as to why there is not even a whisper about the two incidents of gang rape in her written complaint submitted to the IGP, Jammu, on the basis whereof the FIR was registered.

Therefore, perusing the trajectory of the case so far, and based on the afore-stated assessment, the Court noted the peculiarity of the case and pointed out that the petitioners deserve concession of bail.

[Waseem Akram v. UT of J&K, 2024 SCC OnLine J&K 307, decided on 06-05-2024]

*Judgment by Justice Sanjeev Kumar

Advocates who appeared in this case :

For petitioners- P.C. Patnaik, Advocate, with Hemant Mishra & Abid Khan, Advocates

(Petitioners present in person before Registrar Judicial, Jammu)

For respondent- Pawan Dev Singh, Dy. AG-for R1; Deepika Pushkar Nath, Adv. With Zarin Ali & Gazi Muzamil, Advocates-for R2.

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