MUSHTAQ AHMED Vs. UT OF J & K

JUDGEMENT

(1.) In terms of Sec. 439 of Code of Criminal Procedure, petitioner/accused has claimed bail in case arising out of FIR No. 10/2012 registered with Police Station Reasi for commission of offences punishable under Ss. 363/376/343/109 IPC. It is averred, that petitioner is a citizen of India and peace loving and law abiding citizen of Union Territory having movable and immovable property in the UT of J and K and is therefore entitled to the protection of his fundamental rights including the right to liberty and freedom; that the petitioner moved an application before the trial court (Principal Sessions Judge, Reasi) for grant of bail but the learned Court without appreciating the statement of the prosecutrix, law and facts of the case dismissed the bail application; that the petitioner has been wrongly and falsely implicated in aforesaid FIR by the prosecution on the basis of totally untrue and misleading information received; that the applicant was arrested by the Police and produced before the learned trial court wherein he was charged vide order dtd. 12/7/2021; that the statement of prosecutrix was also recorded wherein she has stated that she was raped by the accused Mohd. Rafiq and not by the applicant, however, the accused Mushtaq Ahmed applicant herein the company of Mohd. Rafiq abducted her and was kept confined in a room where the accused Mohd. Rafiq raped her and the prosecutrix was declared hostile and was subjected to cross examination wherein she disclosed that the applicant in connivance with the main accused Mohd. Rafiq abducted the prosecutrix but has clearly denied that the prosecutrix was raped by the applicant Mushtaq Ahmed; that the statement of the prosecutrix which was recorded by the trial court on 6/12/2021 clearly reveals that the applicant has not committed rape with the prosecutrix on the basis of which the applicant was implicated in the said FIR; that in the said FIR the police has registered FIR against three persons including the applicant and the other two persons namely Mohd. Rafiq being minor was convicted by the trial court but after declaring minor he was released by the court and the other accused Mohd. Sharief who provided shelter to the accused Mohd. Rafiq acquitted by the trial court; that after the arrest of the applicant, he was produced before the trial court and the trial court charged the applicant and commenced the trial against the applicant, and during trial the statement of the prosecutrix was recorded, and as per her statements no case is made against the applicant as the prosecutrix has flatly denied that the applicant namely Mushtaq Ahmed has committed rape with her; that the applicant was implicated in the FIR as accused because he is the brother of the main accused namely Mohd. Rafiq; that the applicant was falsely implicated in the FIR as the applicant has not committed any offence as alleged in the FIR as such and the applicant is entitled to concession of bail.

(2.) Respondents have filed objections wherein it has been contended, that on 24/1/2012 complainant namely Mohd. Akram S/o Kala caste Kahmire Lohar R/o Simbol Chowa Tehsil and District Reasi appeared at this Police Station Reasi and produced a written application in urdu mentioned therein that on 14/1/2012 his minor daughter of age 13 " yrs. was missing from home whose report is entered at Police Station Reasi vide DDR No. 16; that the accused person namely Mohd. Rafiq S/o Abdul Aziz caste Kashmiri R/o Thuroo Tehsil Mahore District Reasi had kidnapped his minor girl etc; on this case FIR No. 10/2012 under Sec. 363 IPC registered at this police station and investigation was entrusted to ASI Nazir Ahmed; that during investigation, IO proceed on the spot, prepared a site plan and recovered kidnapped minor girl namely Gulshan Banoo and recorded her statement before court of law u/s 164 Cr.P.C, IO obtained her medical report regarding rape from hospital Reasi, as per the investigation, recorded statement of witness, recorded statement u/s 164 Cr.P.C and medical report, IO found that on 24/1/2012, complainant appeared at this PS Reasi and produced a written application state therein that his daughter is minor i.e. age about 13 " years who was kidnapped by (1) Mohd. Rafiq S/o Abdul Aziz (2) Mushtaq Ahmed S/o Abdul Aziz caste Lohar Both R/o Thuroo Tehsil Mahore District Reasi from home and took her to Bantalab, Jammu and kept her for 8/9 days at the home of one Mohd. Sharief S/o Asgar Ali R/o Bantalab, Jammu where both accused persons have committed her rape, whereas Mohd. Sharief S/o Asgar Ali R/o Bantalab, Jammu is a relative of both accused persons and due to his conspiracy, both accused persons kidnapped her and kept her near a room of his home and repeatedly committed rape with her, on the offence under Sec. 363/376/343/409 RPC have proved against accused persons (1) Mohd. Rafiq S/o Abdul Aziz (2) Mushtaq Ahmed S/o Abdul Aziz caste Lohar Both R/o Thuroo Tehsil Mahore District Reasi, whereas offence under Sec. 109 IPC has proved against the accused person Mohd. Sharied S/o Asgar Ali R/o Bantalab, Jammu.

(3.) Heard and considered.