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Bishan Dass Alias Kala vs State on 17 October, 2018

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

B.A. No. 75/2018
Date of order:- 17.10.2018
Bishan Dass alias Kala Vs State of JK.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : Mr. S. K. Anand, Advocate.
For respondent (s) : Mr. F.A. Natnoo, AAG.

1. The instant bail application has been filed by the applicant/petitioner,
seeking grant of bail in case titled, “State Vs. Bishan Dass and ors.” in FIR
No. 58/2017 under Section 376 RPC.

2. In this petition, it has been stated that the petitioner has been falsely
implicated in the case. The story put forth by the complainant (prosecutrix)
is vague. After framing of the charges, the prosecution was directed to lead
evidence and out of the witnesses cited in the Challan, four witnesses have
been examined, namely, prosecutrix -Jyoti Devi, Dr. Neeraj Nagpal, Kartar
Singh and Kulwant Singh. The statement of the prosecutrix has also been
recorded and the same is untrustworthy. There are material contradictions in
the statement of the prosecutrix, which she narrated before the Court below
and given during the investigation. The provisions of Section 497-C of the
Cr. P.C has no application in the present set of circumstances.

3. Objections have been filed on behalf of the respondent, wherein it has been
stated that the bail application is not maintainable and the same deserves to
be dismissed. The Trial Court has already dismissed the application and the
order of rejection is reasonable and the same does not require any
interference. The accusation against applicant is that on 05th August, 2017,
Victim W/o Angrej Singh R/o Pretha, Tehsil Basholi, lodged a written
report/complaint in Police Station, Basholi against the alleged accused

B.A. No. 75/2018 Page 1 of 5
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persons, namely, (i) Lal Singh S/o Girdhari Lal R/o Pretha (ii) Deep Singh
S/o Napa Ram R/o Poonda (iii) Panku (iv) Bishan Dass @ Kale S/o Shori
Lal R/o Poonda and (v) Aman Deep Kumar S/o Dev Raj R/o Chack Sajan
Moola Talab, Kathua, are that the alleged accused persons are constantly
raping her for the last more than four months.

4. In the objections, it has also been stated that on 01.08.2017, the alleged
accused-Lal Singh S/o Girdhari Lal R/o Pretha forcibly took the complainant
to a cowshed and again raped her without the wishes of the complainant and
during rape the said accused (Lal Singh) caused hurt to her. After
committing such an offence, the alleged accused, namely, Lal Singh also
threatened the complainant of dire consequences, if she discloses the incident
to anyone. On the said report/complaint, an FIR No. 58/2017 for the
offences under Sections 498/376/323/506 RPC was registered in Police
Station, Basholi against the aforementioned accused persons and the
investigation was taken himself by the then SHO P/S Inspector-Sukhvir
Singh. During the course of investigation, the then SHO (I.O) visited the
spot, prepared three Site Plan of occurrences, i.e., Nagrota, Madrore and
Nowshera and medical checkup of the complainant was got conducted at
Sub-District Hospital at Basholi and further the complainant was also
subjected to medical examination at District Hospital, Kathua. After medical
examination, the slides were sent to FSL Srinagar for chemical examination,
report whereof is still awaited. During the investigation, the statements of
the witnesses were recorded under Section 161-Cr.P.C. and the statement of
the victim/complainant was also recorded under Section 164-A Cr.P.C.
before the Court of learned JMIC Basholi. On the basis of investigation,
offences as alleged were found proved. After completion of investigation,
challan has been produced which is pending before Pr. Sessions Judge,
Kathua.

5. Counsel for petitioner has reiterated all grounds taken in bail petition,
whereas State counsel has stated that petitioner is involved in gang rape and

B.A. No. 75/2018 Page 2 of 5
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has also made video film of sexual assault and thereafter has blackmailed her
and committed rape on victim

6. I have considered the rival contentions and gone through the law on the
subject. After concluding the investigation, the Challan has been produced
before the Court below. The petitioner also moved bail application before the
Court below and the Court below has dismissed the said application vide
order dated 19th May, 2018. The concluding part of the said order of the
Court below reads as follows:-

“6. Section 497-C is the newly inserted Section in the Code of
Criminal Procedure in terms of Amendment Act, 2013.

497-C. Special provision regarding bail in certain offences
against women etc. – (1) Notwithstanding anything
contained in this Code no person accused of an offence
punishable under section 304-B, 326A, 370, 376, 376A,
376C, 376D or 376E of Ranbir Penal Code, shall if in
custody, be released on bail or on his own bond unless the
Public Prosecutor has been given an opportunity of being
heard on the application for such release:

Provided that such accused person shall not be released on
bail or on his own bond if the Court, on a perusal of the
case diary or the report made under section 173 of the
Code, is of the opinion that there are reasonable grounds
for believing that the accusation against such person is
prima facie true.

(2) …………………….

(3) …………………….”

7. The contention of the learned counsel for the petitioner/accused
that evidence of prosecutrix is riddled with many loopholes and
infirmities and therefore, her version is not trustworthy, cannot
be accepted, because it will be premature to judge the credibility
of the evidence of prosecutrix recorded in the court at this stage.
However, it is suffice to say that her evidence, ex-facie, shows
that she was subjected to rape by the petitioner/accused and also
by other accused on different occasions from the month of
April, 2017 to August, 2017. Further, as per evidence of
prosecutrix, a video film was prepared by one of the accused,
when petitioner/accused was performing the sexual act with her,
but the mobile phone used for preparing the said video film
could not be recovered during the investigation, which was
thrown in Ranjit Sagar Dam, as per disclosure made by
petitioner/accused.

8. In the light of reasons stated above, the application filed by the
petitioner/accused is misconceived and stands dismissed, which
shall be attached with the main file.”

B.A. No. 75/2018 Page 3 of 5
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7. As per challan accused /petitioner is facing trial under sections 376/376-D/
498/323/506/201 RPC. Other accused have been proceeded u/s 512 Cr.P.C.
Rape is one of the most barbaric and heinous crimes not only against the
victim of the rape but also against the society as a whole. The cases of rape,
gang rape and digital rape are on increase and perpetrators of this inhuman
and brutal crime are worse than even the beasts and deserve to be dealt with a
heavy hand. The entire country is seriously debating this issue and there are
proposals coming forth that death penalty should be the answer to deal with
the accused involved in such heinous crime. Every case has different facts;
some of the recent rape cases have been so horrifying that the entire nation
protested to condemn these barbaric acts and raised a voice to curb the said
menace by inflicting more severe punishment. The Government also
promptly appointed Justice J. S. Verma Committee to review laws on crimes
against women, which recommended certain dramatic changes in the
Criminal law relating to offences against women.

8. Undoubtedly there is a manifold increase in the crime concerning rapes, but
all the rape cases which are filed have their own individual story and factual
matrix. While most of the cases may be genuine, wherein the girl is a victim
of this horrifying crime, or has been forced, blackmailed, threatened to enter
into physical relationship with a male.

9. In present case accusation against /petitioner is of gang rape, making of video
film during rape and thereafter blackmailing and performing of continued
rape on victim. Offence u/s 376-D is punishable with rigorous imprisonment
for a term which shall not be less than twenty years, but which may extend to
life which shall mean imprisonment for the remainder of that person’s natural
life and with fine. Statement of PW Victim, prima facie, shows involvement
of petitioner in gang rape. The argument of counsel for petitioner that there
are contradictions, improvement and embellishment in her statement, is not
tenable at this stage, because detail appreciation of evidence is nor
permissible at this stage.

B.A. No. 75/2018 Page 4 of 5
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10. Therefore, I am not inclined to accept this bail petition at this stage.

Petitioner may file a fresh application before Court below. This petition is
dismissed.

( Sanjay Kumar Gupta )
Judge
Jammu
17.10.2018
Ram Krishan

B.A. No. 75/2018 Page 5 of 5

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