SUNIL KUMAR Vs. UT OF J&K

JUDGEMENT

(1.) Petitioner has sought regular bail in terms of Sec. 439 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') in case FIR No. 112/2021 registered with Police Station Katra for commission of offences punishable under Sec. 376 IPC r/w Sec. 4 of POCSO Act. It is averred, that petitioner has been falsely implicated in the case, respondent No.3 filed a false and frivolous complaint against the petitioner on instigation by respondent No.4 who is working as teacher and manipulates a story to dragged the petitioner in heinous offence, whereby, petitioner has been arrested on 24/6/2021 after six (6) days from the date of alleged occurrence of 18/6/2021; petitioner is an innocent person has done nothing in connection with crime, in fact dispute between the petitioner and respondents. 3 and 4 is civil in nature in regard to a passage towards the house of respondent No.4 which does not exist in revenue records, however, they were quarreling and fighting for the said dispute but compromised amicably on 26/6/2021. It is averred, that the petitioner was working as a laborer, few years back from the date of alleged occurrence he decamped stones with the tractor trolley near his house where the passage passed through towards the house of respondent Nos. 3 and 4, on this they were irritated and had a planned to put the petitioner behind the bar, ultimately with the help of police they succeeded and detained him illegally in police custody in Police Station Katra since 24/6/2021 and now he is languishing in District Jail Reasi, petitioner is the only earning members of the family and due to his arrest, the family members are at the verge of starvation, Challan is pending in the court of Ld. Principal Sessions Judge Reasi, petitioner is ready to furnish personal and surety bonds to the satisfaction of this Court and undertakes to abide by all the terms and conditions imposed by this court.

(2.) Respondent/UT of J&K has opposed the bail on the grounds, that accused has committed heinous offence against society and any concession of bail to him would not be in the interest of the society at large. It is contended, that on 24/6/2021 complainant Rakesh Kumar S/o Lashu Ram R/o Village Nali Kandyar Tehsil Katra District Reasi alongwith his minor daughter whose age is approximately 10 years came in Police Post Kakryal, filed an application written in Urdu to I/C P/P Kakryal, wherein it stated that on 18th of June in the afternoon his daughter/prosecutrix went at 'Nali' for taking water with her younger brother aged 05 years, and at that time the complainant was at his home, in the meantime, suddenly one person namely Sunil Kumar S/o Gian Chand R/o Kandayar came on the spot and committed rape with his daughter/prosecutrix forcefully, and threatened her that if she disclose about the incident at home, he will kill her. It is contended, that his daughter is underage and is not aware of social cause, effect and she did not narrate at home about the incident, and on 23rd of June her daughter narrated about the incident, due to which he delayed to give report, on the basis of application, offences under Sec. 376 IPC and 4-POCSO Act have been made out and the report of cognizable offence entered in the Daily Diary and DD extract submitted to SHO Police Station Katra through SPO Karan Singh No. 562-RSI with request to lodge FIR. It is stated, that as per the contents of DD extract and request of I/C PP Kakryal, a case FIR No. 112/2021 under Sec. 376 IPC and 4-POCSO Act stands registered and investigation of the case was entrusted to I/C P/P Kakryal Inspector Vishal Dogra PID No. ExJ-109535, during investigation of the case I.O visited the spot, prepared the site plan, I.O got conducted the medical examination of the victim through MO CHC Katra, I.O collected the vaginal slides of the victim sent at FSL Jammu for chemical analysis and expert opinion, during further course of investigation I.O recorded the statement of the victim u/s 164 CrPC before the competent court and other witnesses u/s 161 CrPC, after that the potency test of the accused was conducted by the MO at CHC Katra and obtained the report, I.O got the FSL report and final medical opinion from the Gynecologist CHC Katra and on the basis of site plan, statement of the victim as well as the statement of other witnesses recorded u/s 161 CrPC and the medical report, offences u/s 376 IPC, 4-POCSO Act have been established against the accused Sunil Kumar, on 1/9/2021 after completion of investigation Challan of the case has been produced before the Court of Ld. Principal Sessions Judge Reasi, prayer has been made for rejection of the bail.

(3.) Ld. Counsel for petitioner has vehemently sought release of accused on bail by canvassing arguments, that the FIR in question is motivated and tainted with personal gauge, as such, the incident as alleged in the FIR has never occurred and a totally false and frivolous story has been projected, which is for away from the truth. It is argued, that for the last more than one 1 year and 9 months petitioner is languishing in District Jail Reasi, "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 Kanyar Ward No.4 Tehsil Katra District Reasi, has deep roots in the society and therefore does not possess the golden wings to flee from justice. Prayer has been made for enlargement of the petitioner on bail.