The Jammu and Kashmir High Court, Srinagar Bench, granted bail to two men, the brother-in-law and cousin of the Husband of the complainant, accused of gang rape, highlighting serious doubts surrounding the prosecution's case and underscoring the presumption of innocence as a fundamental principle of criminal justice.

The Court noted that there were matrimonial disputes between the complainant and her husband and that the complainant had made allegation of rape even against her father-in-law.

The High Court granted regular bail despite the fact that the accused had not been imprisoned, accepting the case of the accused that they were present in the trial court when their regular bail applications were rejected and have been cooperating with the investigation. The prosecution and the complainant had argued that the accused had not surrendered despite the Supreme Court's direction to do so while refusing to grant them anticipatory bail.

"The manner in which the respondent No. 2 has improvised at every stage brings the prosecution case of gang rape against the petitioners in the realm of suspicion...There is, thus, clear tendency seen in the respondent No. 2 to improvise and make fresh allegations involving her in-laws in the heinous offences in a bid to settle score for her disturbed marital life," the Court observed.

The Bench of Justice Sanjeev Kumar expressed reservations about the credibility of the allegations made by the complainant, suggesting a potential motive of personal vendetta rather than genuine accusations of sexual assault.

The Court's decision stemmed from a meticulous examination of the evidence presented, with Justice Kumar scrutinizing the sequence of events and the conduct of the complainant, referred to as respondent No. 2, throughout the legal proceedings.

The Single-Judge Bench remarked on the respondent's tendency to embellish her allegations, particularly by implicating her in-laws in the purported crimes, indicating a possible attempt to settle scores arising from marital discord.

Emphasizing that is equally important to keep in mind that 'bail is the rule and jail is the exception' is still regarded as essential element ingrained in our criminal justice system, the Court said, "No less important is the presumption of innocence which is regarded as one of the bedrocks of free society and is globally recognized as golden principle of criminal jurisprudence of all civilized nations. We in India find support of this principle flowing directly from Article 21 of the Constitution of India."

The case originated from a written complaint filed by the respondent, who is described as a postgraduate with proficiency in English, alleging sexual assault by the accused. However, subsequent developments, including the respondent's statement recorded under Section 164 of the Code of Criminal Procedure, raised doubts about the veracity of her claims. Notably, the initial complaint to the Inspector General of Police, Jammu, did not mention any instances of rape or attempted rape by the accused, casting doubt on the credibility of later assertions.

"The allegations projected by the respondent No.2 for the first time in her statement recorded under Section 164 of the Code of Criminal Procedure do not inspire much confidence of the Court. It is inexplicable as to why there is not even a whisper about the two incidents of gang rape in her written complaint submitted to the IGP, Jammu, on the basis whereof the FIR was registered," the Court noted.

The Court's analysis of the evidence revealed inconsistencies and discrepancies in the respondent's narrative, leading to scepticism regarding the allegations of gang rape levelled against the accused.

"It is equally significant to bear in mind the distinction between elaboration and improvisation. While elaboration of what is stated in the FIR by the first informant at the time of recording his or her statement is permissible, the same is not true of improvisation, which has the result of creating a new offence against the person accused in the FIR," the Court remarked.

The Court underscored the absence of concrete evidence linking the petitioners to the alleged crimes, further undermining the prosecution's case. "The given facts and circumstances of the case and the material on record do not indicate that there is any prima facie or reasonable ground to believe that the petitioners have committed the offence of gang rape," it said.

The Court said that the police have not brought any material to show that the Petitioners are influential persons who, if released on bail, will influence the investigation. It noted that the Petitioners have placed on record several documents to indicate that they had been cooperating with the police. "The Investigating Officer, who produced the record before me, has not alleged any such non-cooperation on the part of the petitioners," the Court further noted.

In view of the facts and circumstances of the case, the Court opined that denial of Bail to the Petitioners who have surrendered before it would not serve the ends of justice. While allowing the Bail Application, the Court granted bail to the Petitioners subject to furnishing a personal bond of Rs. 50,000 with two sureties of like amount each, to the satisfaction of Registrar Judicial Jammu.

"It is made clear that the observations made hereinabove shall remain confined to the disposal of the instant application only and shall not be construed as expression of an opinion on the merits of the case. The Investigating Officer shall proceed to investigate the matter to unearth the truth by following the due process of law," the Bench clarified.

Accordingly, the Court disposed of the Bail Application.

Cause Title: Waseem Akram & Anr. v. UT of J&K and Anr.

Appearance:-

Petitioner: Advocates P. C. Patnaik, Hemant Mishra, Abid Khan

Respondent: Advocates Pawan Dev Singh (Dy. AG), Deepika Pushkar Nath, Zarin Ali, Gazi Muzamil

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Justice Sanjeev KumarJammu & Kashmir & Ladakh High Court

Sukriti Mishra