Jammu & Kashmir High Court
Reserved On: - 17.10.2025 vs Ut Of J&K Th on 18 October, 2025
2025:JKLHC-JMU:3464
Sr. No. 03
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No. B.A No. 152/2025
CrlM No. 903/2025
c/w
CRM(M) No. 319/2025
CrlM No. 624/2025
Reserved on: - 17.10.2025
Pronounced on: -18.10.2025
Uploaded on: - 18.10.2025
Whether the operative part or full
judgment is pronounced:-Full
Fareed Ahmed, Age 44 years, S/o Lal Hussain, ....Petitioner(s)
R/o Rakh Barotian near AIIMS, Tehsil Vijaypur,
District Samba.
Through:- Mr.Rohit Sharma, Advocate.
V/s
1. UT of J&K Th. .....Respondent(s)
Senior Superintendent of Police, Samba.
2. Station House Officer (SHO), Police Station,
Vijaypur District Samba.
Through:- Mr. Vishal Bharti, Dy. AG with
Mr. Vivek Matoo, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
1. By this composite order, the two connected petitions arising out of
FIR No. 08/2021 and the consequent charge-sheet filed for offences
under Sections 323, 376-D, 366, 212, 506, and 120-B IPC, pending
before the Court of Sessions Judge, Samba as Challan No. 14/2021,
are taken up together for consideration and disposal.
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2. Briefly stated, the prosecution's case is that on 12.01.2021, the
prosecutrix alleged that certain unknown persons forcibly put her
into a vehicle, took her to a secluded place, and subjected her to
gang rape. During the investigation, five persons were identified as
the alleged perpetrators. Four of them were arrested and duly
identified by the prosecutrix; however, the fifth accused remained
at large.
3. It is further alleged that two of the arrested accused, namely Mohd.
Anwar and Showkat Ali, during interrogation, disclosed that after
committing the offence, they had been provided shelter by the
present petitioner. Consequently, the petitioner was arrested and
charge-sheeted under Sections 323, 376-D, 366, 212, 506, and
120-B IPC.
4. The order framing charge has been challenged in CRM(M) No.
319/2025 on the ground that the petitioner had no role in the
commission of the offence of gang rape and that, as per the charge-
sheet itself, the only allegation against him is of harbouring the
co-accused after the commission of the crime, thereby attracting at
best Section 212 IPC.
5. Learned counsel for the petitioner submitted that the offence of
gang rape under Section 376-D IPC embodies the principle of joint
liability, which presupposes prior concert and a meeting of minds.
In the present case, the petitioner's alleged act occurred after the
commission of the offence, when the co-accused purportedly took
refuge in his house. There is, therefore, no material to suggest any
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prior concert, meeting of minds, or participation by the petitioner in
the commission of the offence. Even the charge-sheet concludes by
holding the petitioner guilty only of harbouring under Section 212
IPC, and hence he cannot be roped in with the aid of Section 120-B
IPC.
6. Per contra, learned counsel for the respondent-State contended that
although the petitioner did not participate in the actual commission
of the offence, he had knowledge of the co-accused's intentions
and, in furtherance of a common design, sheltered them. Therefore,
the trial court rightly framed charges against him under Section
120-B IPC, read with other offences.
7. Heard learned counsel for both sides and perused the record.
The charge framed against the petitioner reads as follows:-
"That on 17.01.2021, you, along with other persons, in
furtherance of a conspiracy, jointly dragged the victim
and committed rape upon her without her consent.
Knowing that you and the other accused have committed
the said heinous act, you have thereby become an executor
of the offence punishable under Sections 323, 376-D, 366,
212, 506, and 120-B IPC."
8. From a plain reading of the chargesheet and the record, it is evident
that the petitioner neither met the co-accused before the
commission of the offence nor was present at the time of the
occurrence. The prosecutrix has neither named nor identified the
petitioner as one of the persons involved in the act. No material,
documentary or oral, has been collected during the investigation to
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suggest that the petitioner aided, abetted, or conspired with the
co-accused in committing the offence.
9. The legal position governing such circumstances is well settled.
In "Ashok Kumar v. State of Haryana, reported in (2003) 2
SCC143", the Hon'ble Supreme Court held that Section 120-B IPC
contemplates a bare agreement to commit an offence and that mere
association or knowledge of the offence or its perpetrators does not
constitute conspiracy. It was further held as under,
Charge against the appellant is under Section 376(2)(g) IPC.
In order to establish an offence under Section 376(2)(g) IPC,
read with Explanation I thereto, the prosecution must adduce
evidence to indicate that more than one accused had acted in
concert and in such an event, if rape had been committed by
even one, all the accused will be guilty irrespective of the fact
that she had been raped by one or more of them and it is not
necessary for the prosecution to adduce evidence of a
completed act of rape by each one of the accused. In other
words, this provision embodies a principle of joint liability and
the essence of that liability is the existence of common
intention; that common intention presupposes prior concert
which may be determined from the conduct of offenders
revealed during the course of action and it could arise and be
formed suddenly; but there must be meeting of minds. It is not
enough to have the same intention independently of each of
the offender. In such cases, there must be criminal sharing
marking out a certain measure of jointness in the commission
of offence."
10. Similarly, in "State v. Nalini, AIR 1999 SC 2640", it was held that
mere knowledge of a conspiracy or association with conspirators,
without an agreement to commit the offence, cannot render a person
guilty of conspiracy.
11. Applying the above principles, it is manifest that neither the charge-
sheet nor the statements recorded during investigation disclose any
evidence of prior acquaintance or agreement between the petitioner
and the co-accused, or any participation in planning or executing
the crime. The record merely suggests that after the occurrence, the
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co-accused may have taken shelter in the petitioner's house conduct
which, at best, could attract Section 212 IPC (harbouring
offender).The offence under Section 212 IPC presupposes:-
(i) commission of an offence by another person,
(ii) harbouring or concealing such person, and
(iii) intention of screening him from legal punishment.
12. Even so, such harbouring becomes culpable only if the person had
knowledge or reason to believe that the person harboured was an
offender. Mere shelter, in ignorance of the crime, does not attract
criminal liability.
13. Thus, the trial court, while framing charge on 10.03.2025, has
travelled beyond the material collected during investigation. The
petitioner's alleged conduct, as per the charge-sheet itself, is
confined to harbouring the accused persons after the commission of
the crime; the victim has not attributed any overt act or complicity
to him in the act of gang rape. Even otherwise also, having regard
to the ingredients of Section 376-D of the IPC and Section 212 of
the IPC, from plain expression, it is implicit therein that there is
actual participation of two or more accused forming the gang with
common intention to commit rape. There every member of the
group would be deemed to be partner in crime even if any one of
them had not actually taken part in the act of sexual assault,
whereas harbouring, on the other hand, is a singular act, which
follows only after a particular offence has been committed by the
offender. So much so, until the offender is pronounced guilty, the
act of harbouring cannot be stated to have been completed. The
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trial Court in terms of order dated 10.03.2025, therefore, landed in
error in drawing charge against the petitionerfor offence under
Sections 323, 376-D, 366, 212, 506, and 120-B IPC, that too, when
the charge-sheet did not disclose commission of the said offences
by the petitioner. Hence by accepting CRM(M) No. 319/2025, the
order of drawing charge against the petitioner is quashed.
Petitioner is, prima-facie, found to have committed offence under
Section 212 IPC, for which, he is to be put to trial.
14. Having regard to the charge so altered, the same invites maximum
punishment of five years, whereas the petitioner is stated to be in
custody since 23.01.2024 and his continuous detention is of no use
for the prosecution. Even otherwise also, given the provisions
enshrined in Section 480BNSS 2023, a person accused of
committing the offences carrying punishment for seven years, is not
to be detained in custody merely because he is an accused of
commission of such offence.
15. In that view of the matter, the instant bail application is allowed.
The petitioner is directed to be released on bail, subject to
furnishing suretyin the sum of ₹1,00,000/- (Rupees One Lakh
only) and personal bond of the like amount, to the satisfaction of
the learned trial Court. The trial Court shall be at liberty to impose
such additional conditions, as may be necessary to ensure the
petitioner's presence during trial and to prevent any misuse of the
concession of bail.
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16. Both petitions alongwith all connected miscellaneous applications,
stand disposed of accordingly.
17. Let a copy of this order be transmitted to the learned trial Court for
compliance.
(Sanjay Parihar)
Judge
JAMMU
18.10.2025
Ram Krishan
