Love affair with minor: Bail of undertrial rejected by HC

06/12/2021

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

Bail App No. 56 of 2021 (O&M)

Reserved on: 28.10.2021
Pronounced on: 12.11.2021
Adish Sharma .....Appellant/Petitioner(s)

Through:- Ms. Rozina Afzal, Advocate.
v/s
UT of J&K .....Respondent(s)
Through:- Mr. Aseem Sawhney, AAG

MR. JUSTICE RAJNESH OSWAL
ORDER
1. The petitioner is seeking bail in challan titled State v. Adish Sharma arising out of FIR No. 282 of 2017 registered with Police Station, Domana, Jammu under Section 376 RPC pending before the Fast Track Court, Jammu (hereinafter to be referred as the trial Court).
2. It is stated that the petitioner was falsely implicated and arrested on 10.09.2017 by the police of Police Station, Domana in connection with the aforementioned FIR and at present, the petitioner is lodged in Central Jail, Kot Bhalwal Jammu. It is further stated that in December, 2018, the prosecutrix was cross examined and thereafter the mother of the prosecutrix was examined on 25.02.2020. The petitioner filed an application for grant of bail before the learned 3rd Additional Sessions Court, where the challan was initially pending but the said Court dismissed the bail application of the
petitioner vide order dated 23.01.2021.
3. The petitioner claims to have a long term affair with the prosecutrix and further that the prosecutrix was admittedly above the age of discretion but the trial court has failed to appreciate the said fact as also the medical reports that clearly proved that there was no proof of recent sexual activity. It is further urged that since the star witnesses have already been examined by the Court, so there is no apprehension that the petitioner would tamper with the prosecution evidence.
4. The response stands filed by the respondent in which it is stated that on 09.09.2017, the prosecutrix along with her mother lodged a written report with the Police Station, Domana to the effect that they were staying as tenants at Udhaywala, Jammu and on 13.08.2017 when she was coming from school and waiting for a Matador at Marh Chowk at about 1300 hours, the petitioner came to her on his motor cycle and asked her to sit with him forcibly and took her to his Grand View Palace and forcibly committed rape with her over there. After committing rape, the petitioner threatened her not to disclose the incident to anyone otherwise he would kill her and members of her family. Pursuant to this, the aforementioned FIR was registered. During the course of the investigation, Investigating Officer (IO) visited the spot, prepared the site plan and also got the medical examination of the prosecutrix conducted from the Hospital and obtained medical report. After recording the statement of the witnesses under Section 161 Cr.P.C. as well as victim under Section 164-A Cr.P.C., the petitioner was arrested and the motor cycle was also seized. After the completion of all the formalities, the IO filed the charge sheet. Accordingly, a prayer for rejection of the bail is also made in the objections.
5. Ms. Rozina Afzal, learned counsel appearing for the petitioner vehemently argued that the petitioner has now been in custody for the last four years and no witness has been examined by the prosecution ever-since February, 2020. She further laid stress upon the statement of the prosecutrix to reveal that the false case has been registered against the petitioner. She further argued that the material witnesses have been examined and only formal witnesses remain to be examined.
6. Mr. Aseem Sawhney, learned AAG appearing for the respondent vehemently argued that the petitioner has raped the minor and even if the sexual relations are made with consent of a minor that consent is immaterial. He further urged that in so far as delay in the conclusion of the trial is concerned, this Court can fix the time schedule for conclusion of the prosecution evidence.
7. Heard learned counsel for the parties and perused the record.
8. From the record it is evident that the last witness was examined by the prosecution in the month of February, 2020, who happens to be the mother of prosecutrix and till date, no other witness has been examined. The allegations against the petitioner are serious in nature and this Court, while considering the bail application, cannot examine the merits of the evidence, particularly, in view of the fact that it is not a case in which the prosecutrix has turned hostile. Whether her statement is sufficient to prove the guilt of the petitioner or not, is required to be seen by the trial Court while appreciating the evidence. This Court has refrained itself from returning any finding qua the merits of the case, lest it shall prejudice either of the parties during the course of the trial. The allegations against the petitioner are serious in nature. Out of total 11witnesses, only three witnesses have been examined by the prosecution and even the brothers of the prosecutrix are yet to be examined. Earlier because courts were functioning in restricted manner due to Covid-19 pandemic and it too has led to some delay in the conclusion of trial.
9. In view of the fact that the petitioner is in custody for four long years and the prosecution has examined only three witnesses, this Court deems it proper to fix a time schedule for conclusion of the prosecution evidence instead of granting the bail to the petitioner as the allegations are serious in nature and the brothers of the prosecutrix are yet to be examined.
10. Viewed thus, the present bail application is dismissed. However, trial court is directed to fix the calendar of three days every fortnightly and conclude the prosecution evidence within a period of three months preferably. In the event, the prosecution evidence is not concluded, the petitioner shall be at liberty to lay a fresh motion before the learned trial Court for grant of bail and the dismissal of the bail application either by the trial Court or by this Court shall not come in the way of the consideration of the said bail application by the trial Court.

(RAJNESH OSWAL)
JAMMU JUDGE
12.11.2021
Paramjeet

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