Parshotam Singh Age 25 Yrs. vs Union Territory Of Jammu &
2022 Latest Caselaw 760 j&K

                                                                    Sr. No. 257

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                               Bail App. No. 49/2022
                                               Reserved on     : 22.04.2022
                                               Pronounced on : 10.05.2022

Parshotam Singh age 25 yrs. S/O Sh. Partap                      .... Applicant(s)
Singh R/O Naghal, Tehsil & District Ramban
(presently lodged in District Jail Udhampur).
                 Through :- Mr. K.S. Johal Sr. Advocate with
                               Mr. Karman Singh Johal, Advocate
         V/s

1. Union Territory of Jammu &                                  ....Respondent(s)

Kashmir Through SHO/Incharge Police Station Ramban.

2. Girdhari Lal S/O Amar Chand R/O Ganote Thatha Ramban (impleaded as respondent no.2 on 28-03-2022) Through :- Mr. Eishan Dadhichi, GA

Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

ORDE R

10. 05 .2022

1. Applicant/accused indicted in case FIR No. 175/2021 registered with Police Station Ramban for commission of offences u/s 377 IPC & 3/4 POCSO Act has claimed bail on the grounds, that a false, frivolous fictitious and manipulated FIR on the basis of verbal version of one of the family members of the victim without any medical evidence has been registered as a counter blast to FIR No. 170/2021 registered with Police Station Ramban whereby two (2) members of the said family have already been booked for commission of offences u/s 8/20 NDPS Act in FIR No. 171/2021 and the final report prepared wherein one Amar Singh & Khem Raj sons of Bhagat Ram R/O Village Nagal Ganote Tehsil & District Ramban have been arrayed as accused, whereas Khem Raj S/O Partap Singh and Partap Singh S/O Sant Ram have been shown as witnesses; that the applicant/accused has been arrested for commission of offence u/s 377 IPC r/w 3/4 POCSO Act without any medical evidence; that the trial court has framed the charges against applicant/accused on 21-12-2021 and since then applicant is facing trial; that the applicant/accused moved bail application before the trial court on 27-10-2021 and on 10-02-2022 the said bail application was rejected by the trial court; that the alleged

occurrence has taken place on 02-10-2021 but FIR has been registered on 18-10-2021 after a delay of 16 days which has remained unexplained; that the applicant/accused is inside the jail for the last more than four months and his educational carrier is seriously affected; that there is no mark of violence due to alleged act of sodomy committed by applicant/accused against victim; that the bail cannot be rejected as major of punishment; the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India deems to have been taken away; applicant/accused is a student and is only victim of enmity in the village; applicant has deeps roots in the society as he hails from reputed family, there is no possibility of his tempering the evidence or winning over the witnesses because the father of the victim in the case is complainant whereas one Neelam Singh brother of victim is another witness and all other witnesses are from police department, moreso, the applicant undertakes to abide by all the terms and conditions imposed by the court.

2. Status report/objections have been filed by the respondent No.1 opposing the bail on the grounds, that on 03-10-2021 a written report was lodged by one Girdhari Lal S/O Amar Chand R/O Ganote Thatha Tehsil & Distt. Ramban against applicant/accused for committing an unnatural offence/sodomy and sexual exploitation of minor child namely Anil Singh (Victim) who is studying in BVM High School Ramban and residing in Ward. No.1 Ramban on rental accommodation. It is contended, that the said victim Anil Singh always use to go at applicant's house for learning Computer at Cafeteria Ramban, said Parshotam Singh on 02-10-2021 called the minor child for stay at his home and on assurance of his uncle, minor child agreed for the stay at his home, whereas during the night, applicant/accused harassed the minor child sexually and committed act of sodomy/unnatural offence upon him, whereby, applicant/accused threatened the minor child to be killed if he disclosed the incident to anyone. It is moreso contended, that applicant/accused has committed heinous crime on a minor boy which resulted in registration of FIR 175/2021 u/s 377 r/w 3/4 POCSO Act against applicant/accused, during investigation the medical examination of a victim was conducted, I/O seized the T-Shirt and Trouser of the victim, prepared the site plan, recorded the statement of witnesses u/ss 161/164-A Cr.pc, obtained the date of birth certificate of minor victim and after arresting the applicant/accused on 18-10-2021 charge sheet was produced in the court

of law on 13-12-2021, whereby the accused presently lodged in District Jail Udhampur.

3. Respondent No.2 is the complainant and father of victim Anil Singh and was impleaded as respondent in the bail application vide order of this court dated 28-03-2022. Ld. GA has stated, that since the objections/status report has been filed in the bail application, respondent No.2 need not to file separate objections/status report as the grievances of the victim are being taken care of by respondent No.1. In view of the submission made by Ld. GA for respondent No.1, the bail application has been heard and is being decided on merits.

4. Ld. Counsel has vehemently sought release of accused on bail by projecting arguments, that for the last more than 6 months accused is languishing in District Jail Udhampur, "bail is a rule" and "refusal is an exception", personal liberty of accused is of paramount importance as he is presumed to be innocent till guilt is proved against him, keeping of accused in incarceration in the jail for indefinite period would amount to inflicting pre-trial punishment to him which is against the basic principle of criminal jurisprudence, accused is resident of village Naghal, Tehsil & District Ramban, has deep roots in the society and therefore does not possess the golden wings to flee from justice. It is argued, that charges against accused have been framed on 21-12-2021, whereafter, the statement of victim Anil Singh has been recorded in the trial court on 20- 04-2021 wherein the said victim has resiled from his earlier statement made u/s 164-A Cr.pc, has been declared hostile by the prosecution and the said statement of victim by no stretch of imagination links the accused with alleged commission of crime attributed to him, moreso, the statements of other material prosecution witnesses viz; Girdhari La (f/o victim) & Neelam Singh (B/o victim) recorded u/s 161 Cr.pc if taken on their face value, no offences can be proved against the accused, there is no likelihood that the accused would influence the prosecution witnesses and temper the prosecution evidence. Prayer has been made for grant of bail to the accused.

5. Ld. GA has strenuously opposed the bail by articulating arguments, that offence indicted against the accused is serious & heinous punishable with maximum imprisonment upto life which is against the society at large, as the victim has been subjected to carnal intercourse against the order of

nature by the accused, there is likelihood of accused fleeing from justice if enlarged on bail, and moreso, there is every possibility that the accused on bail will influence the prosecution witnesses and spoil the case of prosecution.

6. Heard Ld. Counsel for the accused and Ld. GA for respondents. I have perused the record carefully. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by the ld. Counsel for the accused in the bail application is required to be examined generally. It is apt to reiterate here, that petitioner/accused has been arrested on 18-10-2021 for commission of offences U/S 377 IPC r/w 3/4 POCSO Act of Police Station Ramban. As per the averments of the bail petition, after the completion of investigation, charge sheet has been presented in the trial court on 13-12-2021, and after the framing of charges on 21-12-2021, the statement of victim Anil Singh stands recorded in the trial court on 20-04- 2022 wherein the victim has resiled from his earlier version recorded u/s 164-A Cr.pc and has turned hostile towards the prosecution.

In a case reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors), Hon'ble Mr. Justice Sunil Hali (His Lordships the then was Hon'ble Judge of the High Court) while granting bail to the accused charged for commission of offence u/s 306/498-A RPC, and while discussing the principles of "prima-facie case", "question of influencing the prosecution witnesses"& "approach of the court in granting bail in non-bailable offences", in paras 17, 18 & 19 of the judgment held as under:-

"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case,

there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.

18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.

19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.

In another case law reported in 2016(2)J.K.J 702, J&K High Court, [Arjun Katal and Ors. versus State of J&K & Ors.] Hon'ble J&K High Court while granting bail to accused for offences u/ss 498A,304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17,25 & 26 of the judgment held as under:-

B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt.,1989,Section 498A,304B and 306-Dowry death-Grant of bail-Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners- Bar under proviso of Section 497C not attracted- Petitioner husband and mother-in-law in custody for more than one years-Refusing bail nothing but punishing petitioners for alleged involvement in death of deceased -Bal allowed.

17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. There seems substance in the argument of learned counsel for the petitioners that entire evidence

implicating the hole family including parents-in- law and brother-in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O did not even investigate whether the brother-in-law was also present in the house during those days or not.

25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court.

26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015. Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners' tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law.

Ratios of the judgments of "Jagdish Kumar's Case" & "Arjun Katal's Case", (Supra) make it manifestly clear, that the approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his presence would be readily available for trial & material witnesses viz; family members of the deceased cannot be win

over. Applying the ratios of judgments (Supra) to the facts of the case in hand, it is apt to mention here, that petitioner/accused since his arrest on 18-10-2021 is lying in detention in District Jail Udhampur for the last more than six months. Petitioner/accused has deep roots in the society and his presence can be secured by directing him to furnish sufficient security. As per the ratios of the judgments (Supra), the legal position is no longer res-integra that "every accused is presumed to be innocent till his/her guilt is proved", "approach of the court in matter of bail should not be that accused should be detained by way of punishment, but whether his presence would be readily available for trial" & "material witnesses viz; family members of the victim cannot be win over". The powers to grant bail has to be considered in the backdrop of constitutional guarantees contained in Article 21 of Constitution of India which guarantees right to liberty of an individual (Vide Jagir Singh Vs. Jagjit Singh & anr. reported in 2012 (2) JKJ 231 (HC). Every accused has a right to defend his case and by keeping the petitioner/accused in detention, it would defeat his right to defend his case. It is pertinent to mention here, that victim of the crime namely Anil Singh in his deposition before the trial court recorded on 20-04-2022 has denied the occurrence and has testified that accused use to have fun with him and did not commit any wrong act with him. Victim Anil Singh has been declared hostile by the prosecution and even in his cross-examination by the PP and counsel for accused, he has tendered different versions and has not stuck to his stand recorded u/s 164-A Cr.pc. It is beaten law, that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the evidence of witnesses. Petitioner/accused in the case in hand cannot be kept in incarceration for a sufficient & indefinite long time as a matter of punishment. The offence indicted against petitioner/accused does not carry a punishment of death penalty or life imprisonment, but alternative punishment ten (10) years which may extend to life imprisonment. The apprehension of the prosecution that petitioner/ accused will abscond can be secured by way of sufficient surety from him. Keeping of petitioner/accused in continuous detention would amount to infringement of his fundamental right of personal life and liberty and inflicting pre-trial punishment. In view of the aforesaid discussion, at this stage, petitioner/accused has carved out a strong case

for bail in his favour. Petitioner/accused is, therefore, admitted to bail subject to his furnishing one solvent surety bond in the sum of Rs. one (1) lac before Registrar Judicial of this Court with the direction to furnish personal recognizance of the like amount before Superintendent District Jail Udhampur. However, before parting, the following conditions are imposed upon the accused:-

(i) that the petitioner/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before this court;

(ii) that the petitioner/accused shall appear before the trial court on each and every date of hearing except for special circumstances beyond his control in which case they shall seek exemption from the trial court;

(iii) that in case prosecution collects any material during the period the accused are on bail that he has influenced the witnesses or tried to intimidate them, the prosecution would be well within its right to move an application before this court for cancellation of his bail.

7. Disposed of accordingly.

(MOHAN LAL) JUDGE Jammu:

10.05.2022 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No