Fayaz Ahmad Dar vs Ut Of J&K
2021 Latest Caselaw 740 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                                                        Reserved on:07.07.2021
                                                                      Pronounced on:12.07.2021

                                                     Bail App No.36/2021


                           Fayaz Ahmad Dar                                    ...PETITIONER(S)

                                     Through: Mr. N.H.Kuchai, Advocate.

                           Vs.

                           UT of J&K                                         ....RESPONDENT(S)

                                     Through: Mr.Asif Maqbool, Dy. AG vice
                                              Mr. Mir Suhail, AAG

                           CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                                          JUDGMENT

1) The petitioner, who is arrested in FIR No.457/2020 under

Sections 376, 354, 511 IPC and Section 8 of Protection of Children

from Sexual Offences Act, 2012 ("POCSO Act"), seeks his

enlargement on bail on the ground that he is a law abiding citizen of

India and has been falsely implicated in the crime, which he ever

committed.

2) It is claimed that a neighbours of the petitioner, namely, Rafiq

Ahmed Sheikh and his family, who belong to a different sect of Islam,

harbour ill will against the petitioner and have, with a view to settle

scores, lodged a false and frivolous FIR in Police Station, Budgam.

The petitioner was arrested by the police of Police Station, Budgam

VINOD KUMAR on 16.12.2020 and ever since he is in judicial custody and has been 2021.07.13 11:52 I attest to the accuracy and integrity of this document

languishing in central jail, Srinagar. It is submitted that the police has

completed the investigation in the case and has presented the Final

Report (challan) before the Court of Learned Sessions Judge, Budgam

("the trial Court"). The petitioner also seeks his release from custody

on the ground that going by and accepting the contents of the FIR,

lodged against him, as gospel truth, no offence under Section 376/511

IPC or under Section 8 of POCSO Act is made out. The petitioner,

therefore, urges this Court to enlarge him on bail subject to such terms

and conditions as this Court may deem fit and that he undertakes to

abide by the same in letter and spirit.

3) It is contended that the petitioner had, in the first instance,

approached the trial Court, but his bail plea was rejected by the trial

Court vide its order dated 16.03.2021. The order of rejection passed

by the trial Court is cryptic and does not dwell upon the well-

established parameters to be taken into consideration while

considering bail plea in non-bailable offences.

4) Heard learned counsel for the parties and perused the record.

5) It may be pertinent to note that this Court vide its order dated

02.04.2021 passed in this application had desired the learned counsel

for the petitioner to argue on the maintainability of the instant

successive bail application after dismissal of his bail application by

the trial Court. Learned counsel for the petitioner argues that this

question need not detain this Court, for, the issue raised by this Court

VINOD KUMAR is now well settled. Successive bail application after the dismissal of 2021.07.13 11:52 I attest to the accuracy and integrity of this document

bail application by the lower Court is maintainable before the High

Court. There is no denying the fact that under Section 439 of the Code

of Criminal Procedure, the High Court and the Court of Sessions have

concurrent jurisdiction to grant bail and in case a person in custody in

connection with the commission of offence of the nature specified in

Sub Section 3 of Section 437 of Cr.P.C. moves the Court of Sessions

for grant of bail and his bail plea is rejected, he shall be entitled to file

a fresh bail application before the High Court on the same grounds.

While doing so, he may also point out the illegality or infirmity in the

order of learned Sessions Judge rejecting his bail plea. The Court

hearing the successive bail application is obliged to consider the

findings of the Court given while rejecting earlier bail application.

However, if successive bail application is moved before the same

Court, then it is incumbent upon the applicant to plead and

demonstrate change of circumstances.

6) Adverting to the merits of the bail plea of the petitioner, it is

seen that on the basis of a written complaint made by the complainant

Rafiq Ahmad Dar in the Police Station, Budgam to the effect that his

niece, a student, had gone to the house of the petitioner for buying

mobile charger and that the petitioner took his niece to the attic of the

house, took of her clothes and made an attempt to rape her, a case FIR

No.457/2020 for offences under Sections 376, 354, 511 IPC and

Section 8 of POCSO Act was registered in the Police Station

concerned. Investigation was set in motion. VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

7) During the course of investigation site plan was prepared,

statements of the witnesses were recorded and the victim was

subjected to medical checkup. As per the medical opinion, no

intercourse had taken place nor was there any mark of violence on the

body or any private part. The statement of the victim girl was also

recorded in terms of Section 164-A Cr.P.C before the Court of

Judicial Magistrate 1st Class, Budgam. The police also obtained birth

certificate of the victim girl and found that she was 10 years and nine

months old. On the basis of the investigation conducted and the

statement of the victim recorded, the petitioner was arrested and

challan was presented before the Court of Sessions Judge, Budgam on

31.12.2020. The police also claims that the complainant has also

produced a CD and a mobile phone before the Investigating Officer

and claims that it is an essential piece of evidence. Accordingly, the

trial Court has been approached for permission to investigate the

matter further and file supplementary challan.

8) As per the statement of the victim recorded under Section 164

Cr.P.C, the victim, as is claimed by her, went to the house of the

petitioner, who happens to be her neighbour, to get mobile lead as the

petitioner deals with mobile accessories. The petitioner met her in the

courtyard of the house and took her to the attic of the house. He gave

her mobile lead and thereafter gagged her mouth with a tape, took off

her trousers and also removed his own trousers. However, in the

VINOD KUMAR meanwhile, younger brother of the petitioner reached on spot. The 2021.07.13 11:52 I attest to the accuracy and integrity of this document

petitioner removed the tape from the mouth of the victim and went to

other side. It is, however, stated by the victim that she covered her

legs with her shirt and the brother of the petitioner could not see her.

She further stated that the petitioner threatened her not to tell about

this incident to anyone. She, accordingly, did not narrate the story to

anyone for two days. It was only when a similar incident took place in

the locality, she also narrated her story to her family members. The

petitioner, when confronted, apologized for his act before the maternal

aunt of the victim. This is the long and short of the statement of the

victim recorded under Section 164 Cr.P.C. and the basis of challan

presented by the police before the trial Court for commission of

offence punishable under Section 376/511, 354, 506 IPC and Section

8 of POCSO Act.

9) Analyzing the statement of the victim in light of the definition

of rape given in Section 375 IPC, indisputably, the act of petitioner

does not, by any stretch of reasoning, amount to rape. However, the

question that begs an answer in this case is, "whether the act of the

petitioner taking off the trousers of the victim as also is own trousers

would amount to an attempt to rape punishable under Section 511 of

the IPC".

10) Hon'ble the Supreme Court in the case of Tarkeshwar Sahu v.

State of Bihar, (2006) 8 SCC 560, in paragraph No.17 of the

judgment, held thus:-

VINOD KUMAR 2021.07.13 11:52 I attest to the accuracy and integrity of this document

17. A similar case was decided by Mirza and Broomfield JJ. of the Bombay High Court in Ahmed AsaltMirkhan, Cri A No.161 of 1930, decided on 12.08.1930 in Law of Crimes by RatanlalDhirajlal, p.922 . In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over 'her mouth to prevent her crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.

11) There is, thus, fine distinction between preparation and attempt

to commit offence and the different between the two lies primary in

the greater degree of determination and it is, therefore, necessary to be

proved in an offence of attempt to commit rape that the accused has

gone beyond the stage of preparation. In the instant case, the

petitioner had allegedly stripped the victim naked and had also taken

VINOD KUMAR off his trousers. This was, thus, an effort of making preparation for 2021.07.13 11:52 I attest to the accuracy and integrity of this document

committing an attempt. Without there being any further act committed

by the petitioner, it is difficult to arrive at a conclusion that the

petitioner intended to commit rape or that the act attributed to the

petitioner amounts to an attempt to commit rape.

12) Believing the statement of the victim, as it is, prima facie the

act of the petitioner may amount to making preparation for

committing rape but cannot be said to be an attempt to commit rape.

Therefore, prima facie, Section 511 IPC may not be attracted. It could,

at best, be a case of indecent assault punishable under Section 354

IPC. This brings me to another question; "whether the offence under

Section 8 of POCSO Act is prima facie made out against the

petitioner?"

13) Section 7 of the POCSO Act defines sexual assault whereas

Section 8 prescribes punishment for such sexual assault. For facility

of reference Sections 7 and 8 of POCSO Act are reproduced

hereunder:-

"7. Sexual assault.---Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

"8. Punishment for sexual assault.----

Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term VINOD KUMAR which shall not be less than three years but which 2021.07.13 11:52 I attest to the accuracy and integrity of this document

may extend to five years, and shall also be liable to fine."

14) Going by the statement of the victim, which is the only

primarily evidence in the case, it is abundantly clear that the act of the

petitioner taking off the trousers of the girl and also taking off his own

trousers was an act with sexual intent, which involved physical

contact without penetration and, therefore, would amount to

committing sexual assault punishable under Section 8 with a term,

which shall not be less than three years but which may extend to five

years and also be liable to fine. Therefore, I am of the prima facie

view that not only the petitioner is accused of committing indecent

assault but also seems to have committed sexual assault defines under

Section 7 of the POCSO Act.

15) Keeping in view the totality of circumstances and the

discussion made herein above, the petitioner, who is in custody since

16.12.2020 and that the investigation in the matter has since been

completed and the challan presented in the Court of law, I am of the

view that indulgence of this Court is called for. After all an accused is

presumed to be innocent until proven guilty. We also cannot forget

that bail is a rule and its denial an exception. The purpose of arrest has

been well served. The petitioner is, thus, held entitled to grant of bail

subject to the petitioner's furnishing personal bond in the amount of

Rs.50,000/- and two sureties of the like amount to the satisfaction of

the trial Court. The grant of bail shall be further subject to following

VINOD KUMAR conditions: -

2021.07.13 11:52 I attest to the accuracy and integrity of this document

i) That the petitioner shall not directly or indirectly influence

or pressurize the prosecution witnesses.

ii) That the petitioner shall not come in contact with the victim,

her family or other relatives with a view to influence the

trial.

iii) The petitioner shall not leave the jurisdiction of the trial

Court without prior permission.

iv) The petitioner shall regularly appear before the trial Court

on each and every date of hearing.

16) Before parting, it may be clarified that the discussion made

above and the prima facie findings returned herein above, were only

for the purposes of disposal of this bail application and nothing said

herein above shall prejudice the trial in any manner and the trial shall

be conducted by the trial Court uninfluenced by any of the

observations made in this order.

The bail application stands disposed of in the above terms.

(Sanjeev Kumar) Judge Srinagar 12.07.2021 "Vinod, PS"

                                             Whether the order is speaking:         Yes
                                             Whether the order is reportable:       Yes




VINOD KUMAR
2021.07.13 11:52
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