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Vinod Kumar vs State And Anr. on 28 September, 2018

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

B.A. No. 95/2018, IA No. 01/2018
Date of order:-28.09.2018
Vinod Kumar Vs. State and Anr.
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:
For Petitioner(s) : Mr. Vaibhav Gupta, Advocate.
For respondent (s) : Mr. Ajaz Lone, GA vice

Mr. Suneel Malhotra, GA.

i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?

1. The instant bail application has been filed by the applicant/petitioner,
seeking grant of bail, who is facing trial under Sections 376, 109 and 498-A
RPC in FIR No.27/2017 in Challan titled “State of JK Vs. Vinod Kumar
and others”, pending before the Court of learned 3rd Additional Sessions
Judge, Jammu (Fast Track Court).

2. In the petition, it has been stated that the petitioner has been wrongly and
falsely implicated by the complainant, who is his sister-in-law (wife of his
elder brother) in FIR No. 27/2017, registered with Police Station, R.S. Pura.
Besides the petitioner, the complainant has also involved her husband,
namely Raj Kumar and her father-in-law and mother-in-law, namely, Sh.
Ramesh Chander and Smt. Pushpa Devi, against whom allegations of
harassment on account of dowry has been alleged. The allegation of rape
against the petitioner has been alleged. On the Complaint filed by the
complainant offence punishable under Section 313 RPC was also registered
in the FIR against the petitioner, but the same could not be proved and was
dropped. The complainant has matrimonial dispute with her husband and
in-laws. As soon as the notice in a petition under Section 9 of the JK

B.A. No.95/2018 Page 1 of 8
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Hindu Marriage Act, 1980 (hereinafter referred to as the Act) was issued
and served upon the complainant, she filed an application under Section
156(3) Cr.P.C and on the directions of the learned Magistrate, an FIR No.
27 of 2017 was registered. The vagueness and falsity of the allegations
alleged against the petitioner in the aforesaid criminal case can be judged
from the fact that the complainant has alleged that the petitioner has
allegedly raped on three occasions, i.e., 18th August, 2016, 15th October,
2016 and lastly on 27th November, 2016. However, the complainant has
admitted that she remained silent about the aforesaid incidents and did not
disclose the same to any person including her parents.

3. It is stated in the instant bail application that the petitioner was taken into
custody pursuant to the registration of the aforesaid FIR No.27/2017 with
Police Station, R.S. Pura and since then, he is in custody. After filing of
the challan, the petitioner filed an application for grant of bail before the
Court of learned 3rd Additional Sessions Judge, Jammu (Fast Track Court).
The said application remained pending consideration. The statement of the
prosecutrix/complainant in the challan was recorded during the trial on
05th October, 2017, which included on 31st May, 2018. Copy of the
statement of the complainant/prosecutrix is annexed as Annexure-B to the
instant bail application. After recording of her statement, the bail
application was argued before the learned Trial Court and vide order
(Annexure-A) dated 09th June, 2018, the learned Trial Court has dismissed
the bail application on such grounds and the reasons, which are not legally
tenable and sustainable. From the allegations leveled against the petitioner
and as per the statement of the prosecutrix, the offence of rape punishable
under Section 376 RPC is not at all made out and the learned Trial Court
ought to have admitted the petitioner to bail. After rejection/dismissal of the
bail application filed by the petitioner, the petitioner has filed the instant
bail application, seeking grant of bail on the following amongst other

B.A. No.95/2018 Page 2 of 8
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grounds to be urged at the time of hearing. The grounds are taken
alternatively and without prejudice to each other:-

a) That as is apparent and evident from the Challan presented,
amongst others, again the petitoner, no offence punishable under
Section 376 RPC is made out against the petitioner on the basis of the
allegations alleged by the complainant against the petitioner. The
story projected in the Challan by the prosecution is highly
inconceivable and unbelievable. The complainant/prosecutrix was
alleged to have been raped by the petitioner on three different
occasions after a gap of almost two months at her matrimonial home,
but strangely the complainant did not raise any hue and cry nor
reported the matter to any person and remained living at her
matrimonial home. This goes to the root of the case to suggest that the
whole story of rape projected by the complainant is an after-thought
and has been maneuvered for the purpose of harassing and
blackmailing her husband and in-laws. It is not digestible that the
lady, who has been raped thrice did not unveil such heinous crime to
any person including her family members nor to the police. It is only
after the husband of the complainant filed a petition under Section 9
of the aforesaid Act, the complainant knowing fully well that on her
baseless and vexatious allegations of rape, the concerned Police
Station will not register any FIR, therefore, she by misusing the
provisions of Section 156(3) of Cr. P.C succeeded in getting the
petitoner involved inj a case punishable under Section 376 RPC.
These crucial aspects though specifically and categorically argued
before the learned Trial Court, but the learned Trial Court without
considering these legal aspects of the case has rejected the bail
application filed by the petitioner on such grounds, which are not
legally sustainable.

b) That the learned Trial Court has further not appreciated that
during her cross-examination, the complainant has admitted that she
never showed any resistance nor raised any alarm during the time
when she was allegedly raped by the petitioner though near to the
place of occurrence, which is the matrimonial house of the
complainant, there are number of houses located including the house
of the close relatives of the petitioner. Even after allegedly committing
rape when the petitioner is alleged to have left the home, the
complainant remained living along till return of her in-laws and
during this period also, she never ever reported nor even tried to report
any such incident either to the neighbourers or to the police or to her
family. In her cross-examination, the complainant has admitted on all
the three occasions, her clothes were not torn off during the alleged
rape. This clearly shows that the entire story is fabricated by the
complainant just to involve the petitioner in a frivolous case in view of
the complainant have matrimonial dispute with her husband and in-
laws. The learned Trial Court has not considered this aspect of the
matter while rejecting the bail application filed by the petitioner.

c) That the learned Trial Court while rejecting the bail application of
the petitioner has also not considered the vital and significant
document, i.e., FSL Report (Annexure-C) as well as Medical Report
(Annexure-D), wherein no spermatozoa was detected/found on the

B.A. No.95/2018 Page 3 of 8
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vaginal secretion and as per the Medical Report, no injury marks were
found on the body.

d) That in support of bail plea, the learned counsel for the petitioner
during the course of arguments relied upon various judgments and
bail orders of different High Courts as well as Supreme Court of India,
which have not been at all properly evaluated and appreciated by the
learned Trial Court. The petitioner in the given scenario of the case
and in reference to the law laid down in the given facts and
circumstances of the case was fully entitled to bail, which has been
wrongly denied by the learned Trial Court without returning any
cogent and convincing findings, which stand the test of judicial
scrutiny.

e) That the learned Trial Court has passed the order impugned
without proper application of mind inasmuch as the learned Trial
Court in the order dated 09th June, 2018 has specifically referred to the
statement of the complainant/prosecutrix, but in the operative portion
of the order in para 17 has held that statement of no witness has been
recorded including the statement of the victim and has proceeded to
hold that enlarging the accused/applicant at this stage does not seem to
be genuine. These findings and observations returned by the learned
Trial Court are self-contradictory, which clearly shows that the
learned Trial Court has decided the bail application filed by the
petitioner in a perfunctory manner.

4. Objections have been filed on behalf of the respondents. The stand taken
therein is that the petitioner vide order dated 07th February, 2017 issued by
the Court on filing of the complaint by the victim, an FIR came to be
registered and after culmination of the investigation, challan has been
presented before the Court where the accused is facing trial. The petitioner
stands charged for the commission of offence under Sections
376, 498-A RPC and the case is at the stage of recording of prosecution
witnesses. It is well settled that at the time of consideration of bail,
prosecution evidence is not required to be discussed to find out guilt of the
accused or to acquit him from the offence. It is also stated in the objections
that the rape being the fastest growing crime should be one of the most
deplorable, belligerent and atrocious act committed against the dignity of a
women. Commission of rape is more serious than the commission of
murder. Since the petitioner has committed a very serious offence, as such,
he does not deserve any concession of bail. Since there is also reasonable
apprehension that in case the concession of bail is extended to the accused-

B.A. No.95/2018 Page 4 of 8
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petitioner at this stage, he may abuse the liberty to subvert justice and
threaten the prosecution witnesses, as such, the accused-petitioner is not
entitled to be released on bail. Keeping in view the gravity of accusation,
nature of evidence available and severity of the punishment provided for
the offence, the accused-petitioner does not deserve the discretion of grant
of bail, as such, the instant bail application is required to be rejected out
rightly. It is further stated in the objections that the above titled bail
application is not maintainable and deserves to be dismissed as being
premature and without substantial change of circumstances between the
earlier application filed by the accused-petitioner before the Court of
learned 3rd Additional Sessions Judge, Jammu, which has been rejected on
09th June, 2018 and the present application filed before this Hon’ble Court
is not maintainable and deserves to be dismissed. The pleas raised by the
petitioner in his application are wrong, false and concocted, which are
untenable in the eyes of law. While rejecting the bail application of the
accused-petitioner, the learned Court has appreciated every aspect of the
case and has rightly rejected the bail petition while passing a detailed order.
The Hon’ble Supreme Court of India has laid down proposition of law
regarding successive bail applications that an accused has a right to make
successive applications for grant of bail, but the Court entertaining such
subsequent bail applications, has a duty to consider the reasons and grounds
on which the earlier bail applications were rejected and in such cases, the
Court has also a duty to record what are the fresh grounds, which persuade
the Court to take a view different from the one taken in the earlier
applications.

5. I have considered the rival contentions. It is fact that the prosecutrix has
leveled accusation against her husband, father and mother-in-law and
petitioner (brother-in-law); she has not only leveled accusation of cruelty
against other accused, but has leveled accusation of rape on her against the

B.A. No.95/2018 Page 5 of 8
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petitioner on 18.08.2016, 15.10.2016 and 27.11.2016 in the matrimonial
house.

6. From the facts of the case, it is evident that there appears to be a
matrimonial dispute as petition u/s 9 of H.M. Act has been filed by husband
also; the FIR in the case has been lodged on 07.02.2017 after more than
three months of last occurrence of alleged rape; accused is in custody since
more than one and half years; the statement of victim has already been
recorded on 5.10.2017. Court below has rejected the bail application on the
ground that prima facie case is made out and rigor of section 497-C Cr.P.C.
is applicable.

7. Section 497-C (1) Cr.P.C. and its proviso are relevant, which is
reproduced for ready reference:

“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

The restrictions on granting bail specified in sub section (1) shall be in
addition to the restriction under the code or any other law for time being in
force on granting of bail.”

8. From bare perusal of this section, it is evident that rigor of Section 497-C
Cr.P.C. is applicable prior to producing of evidence by prosecution,
because its proviso categorically states that if court, after perusing the
C/D file or report made under section 173 of code, comes to opinion that
there are reasonable grounds for believing that accusation is prima facie
true. So accusation means, which has been leveled in challan or FIR. In
present case, trial has already been commenced; accused has been charge

B.A. No.95/2018 Page 6 of 8
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sheeted and even material witness/victim has been recorded during trial. So
rigor of this section would not be applicable.

9. 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 on the false
pretext of marriage with the sole intent to physically exploit the girl but
there may be cases where both persons out of their own will and choice,
develop a physical relationship. Many of the cases are being reported by
those women who have consensual physical relationship with a man but
when the relationship breaks due to one or the other reason, the women use
the law as a weapon for vengeance and personal vendetta to extort money
and sometimes even to force the boy to get married to her. Out of anger and
frustration, they tend to convert such consensual sex as an incident of rape,
defeating the very purpose of the provision. There is a clear demarcation
between rape and consensual sex and in cases where such controversies are
involved, the court must very cautiously examine the intentions of both the
individuals involved and to check if even the girl on the other hand is
genuine or had malafide motives. Cases like these not only make mockery
of the sacred institution of marriage but also inflate the statistics of rape
cases which further deprecates our own society.

10. Every case has different facts and a straight jacket formula cannot be
applied that accused in rape case need no leniency. The accused cannot be
kept in custody as a matter of punishment before trial; the entire allegations
leveled against the accused persons including present petitioner, which has
come into the statements of victim during trial are subject to judicial
scrutiny; innocence or guilt of accused now depends upon appreciation of
statement of victim and evidence of other witnesses; offence for which
accused has been charge sheeted is neither punishable with death or life

B.A. No.95/2018 Page 7 of 8
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imprisonment. Further threatening of victim does not arise as her statement
has already been recorded. Long incarnation would amount to violation of
personal liberty of accused. So without commenting on merit of the case, I
am of considered opinion, a case of grant of bail is made out. Accordingly
this application is allowed subject to furnishing of surety bond and personal
bond of Rs.50,000/- each subject to satisfaction of Court below. Provided,
petitioner shall attend the trial; he shall not leave jurisdiction of court
concerned; and shall not come in contact with complainant party. This
petition is disposed of accordingly.

(Sanjay Kumar Gupta)
Judge
Jammu
28.09.2018
Ram Krishan

B.A. No.95/2018 Page 8 of 8

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