PAWAN KUMAR Vs. UT OF JAMMU AND KASHMIR

JUDGEMENT

(1.) The instant bail application has been filed under the provisions of Sec. 483 of Bharatiya Nagraik Suraksha Sanhita, 2023, [hereinafter referred to as 'BNSS, for short], corresponding to Sec. 438 of the repealed Code of Criminal Procedure, 1973, [hereinafter referred to as ' Code' for short], for grant of bail in favour of the petitioner/accused in case FIR No. 116/2022 of Police Station, Katra, the investigation wherein has already culminated into the filing of final police report/challan filed before the court of learned Principal Sessions Judge, Reasi [hereinafter referred to as 'the Trial Court'] in terms of the provisions of Sec. 193 of the BNSS, corresponding to Sec. 173 of the Code under Sec. 376, 506 IPC and 3/4 of Protection of Children from Sexual Offences Act 2012, [herein referred to as ' POCSO Act'] pursuant to the dismissal of his earlier bail application by the Trial Court.

(2.) The bail has been sought on the grounds that petitioner/accused has been falsely and frivolously involved in the case FIR No. 116/2022 of Police Station, Katra, registered under Ss. , 376,506 IPC and 3/4 of POSCO Act, which has culminated in the filing of final report/challan pending before the learned Trial Court. That an earlier bail application filed for and on behalf of the petitioner/accused before the learned Trial Court on 14/2/2024, came to be dismissed by the learned Trial Court vide Order dtd. 8/6/2024 as being non-maintainable on the ground that this Court in a criminal petition filed under Sec. 482 of the Code, corresponding to Sec. 528 of the BNSS, stayed the process of taking cognizance on the final report/challan while allowing the presentation of the same vide Order dtd. 8/5/2024. That aggrieved by the Order dtd. 8/6/2024, passed by the learned Trial Court while dismissing the bail application, the petitioner/accused approached this Court with a bail application bearing No. 133/2024 and this Court, vide Order, dtd. 21/6/2024, set-aside the Order dtd. 8/6/2024, of the learned Trial Court, directing for adjudication of the bail application on merits. That the learned Trial Court pursuant to the Order dtd. 21/6/2024, of this Court heard the bail application afresh and disposed of the same on merits while dismissing the same vide Order dtd. 10/7/2024, which necessitated the filing of instant bail application. That the medical evidence, FSL opinion and more especially, the DNA Analysis Report have ruled out the involvement of the petitioner/accused in the commission of alleged crime. That basically a couple, namely, "X" [husband] and "Y" [wife] residents of Panjar District Udhampur along with their minor children came to Katra in the year 2011 in search of their employment as labourers/private workers on account of their extreme poverty. That the mother of the petitioner/accused gave them shelter and in lieu of the same, Mrs. "Y" used to attend the house hold works of the mother of the accused when "X" used to go for begging at Railway Track, out of which amount the major portion was used to be taken by the mother of the accused. That "Y" while giving birth to her 5th child in the year 2015 expired and later on her husband "X" also died in the year 2018. That the children of the deceased couple consisting of four daughters and one son continued to live with mother of the accused even after the death of their parents as none of their relatives came forward to own them. That in February, 2021, two daughters of the deceased couple including the prosecutrix ran away from Katra on the pretext of seeing their land at their parental village Panjar, Udhampur, as they came to be informed by some villagers that their parental uncles are going to sell out their share in the land also. That while going to their native village Panjar, Udhampur, they met their step maternal grandfather and thereafter both the girls stayed at his residence for 15 to 20 days. That as per the version of one of girls, i.e., sister of the prosecutrix, she narrowly escaped an attempt of sexual assault of her said maternal step grandfather on which night she ran away from his home and slept on the road side and reached Katra next morning. That the other girl i.e., complaint/victim preferred to stay at her step maternal grandfather's house despite, the insistence by her sister for coming back to Katra. That the respondent no. 2/victim continued to live at maternal grandfather's house till February, 2022, where she reportedly gave birth to a baby girl who is now about more than one month old. That the parental uncle's son of the respondent no. 2/victim, upon hearing about the matter approached the concerned police station in Panjar, Udhampur for taking action against the maternal grandfather of the prosecutrix for committing forcible repeated rape upon her, making her pregnant and even managing her delivery in a Jungle (Forest). That the step maternal grandfather of the respondent no. 2/prosecutrix, by use of his influence succeeded in shifting the blame upon the petitioner/accused. That on 23/4/2022, the said person brought the respondent no. 2 to Police Station, Katra, under his influence and succeeded in lodging a complaint written in Urdu before the SHO, Police Station, Katra, involving the petitioner/accused in commission of the crime. That it was alleged in the said complaint lodged by the respondent no. 2 at the behest of her said step maternal grandfather that the petitioner/accused allured her and forcibly committed rape on her, whereafter he threatened her of dire consequences in case she made a revelation of the same, who lastly took the prosecutrix to her step maternal grandfather's place at Panjar, where, after one month, she gave birth to a baby girl. That the respondent no. 1, i.e., SHO, Police Station, Katra, without looking to the genuineness of the highly motivated complaint prepared and filed by said step maternal grandfather of the victim through her, registered the FIR No. 116/2022 against the petitioner/accused for commission of offences under Ss. 376,506 IPC and 3/4 of POSCO Act. That the registration of the FIR against the petitioner/accused is also backed by the persons who have committed the murder of the brother of the petitioner/accused and were acquitted by the Trial Court, but regarding which acquittal, the mother of the petitioner/accused has filed a criminal revision which is pending before this Court alongside the acquittal appeal filed by the Union Territory of Jammu and Kashmir. That the registration of the FIR against the petitioner, was assailed by him through the medium of a criminal petition filed under Sec. 482 of the Code bearing No. CRM(M) No. 368/2022 titled Pawan Kumar vs. UT of Jammu and Kashmir and Anr., in which, this Court in the first instance directed that while proceeding with the investigation of the case, the respondent no. 1 shall await the orders of this Court for filing charge sheet, if any, contemplated. That this Court subsequently vide Order dtd. 8/5/2024, passed on the said petition directed the prosecution to file the challan before the Trial Court, but barred the taking of cognizance in the criminal case till further orders of this Court. That it is the case of the prosecution as mentioned in the challan that the DNA Analysis has ruled out the petitioner/accused as being the biological father of the child who was born from the respondent no. 2 out of the alleged offence of rape. That the learned Trial Court, while rejecting the bail vide Order dtd. 10/7/2024 has committed an error as the Court has failed to appreciate that the allegations against the petitioner/accused as per the prosecution are full of inherent contradictions and based on no overwhelming evidence. That the learned Trial Court has overlooked the very important aspect i.e., DNA Analysis Report while rejecting the bail application. That the petitioner/accused in his petition earlier filed before this Court under Sec. 482 of the Code has averred that he has been falsely implicated in the case as he had no physical contact with the alleged prosecutrix. That the petitioner/accused voluntarily opted for his DNA profiling for allowing the State to ascertain his involvement. That the incarceration of the petitioner in the case despite his non-involvement as per the DNA Report is unjustified under law. That the learned Trial Court has rejected the bail application of the petitioner only on the basis of statement of respondent no. 2 recorded during investigation under Sec. 164 of the Code, which, inter alia, is to the effect that petitioner raped her for three to four years and when she revealed the matter to her mother, she did not pay any heed to the same and instead turned her out from her residence, which version could not be believed as being without any clear dates and being belated. That had the respondent no. 2 been subjected to the rape by the petitioner continuously for years, then she ought to have raised an alarm earlier. That the respondent no. 2 was residing for more than one and a half year at Panjar in her step maternal grandfather's house, who, in fact, subjected her to repeated rape and made her pregnant where after he by use of his influence and by exerting undue influence on the respondent no. 2 succeeded in filing a false complaint before the SHO, Katra, for registration of FIR. That the petitioner will not jump over the concession of the bail and shall abide any conditions that may be imposed by the Court. That the Hon'ble Supreme Court of India in a criminal appeal No. 537/2020 titled Jayanat Chatterjee vs. The State of West Bengal enlarged the appellant/accused to bail on the ground that DNA Report did not show him as the biological father of the child born.

(3.) The respondent no. 1 i.e., Union Territory of Jammu and Kashmir through SHO, Police Station Katra Reasi resisted the bail petition on the grounds, inter alia; that the petitioner/accused is involved in commission of offences punishable under Ss. 376,506 IPC and 3/4 of POSCO Act arising out of case FIR No. 116/2022 registered with Police Station, Katra Reasi; that the statements of the witnesses especially that of the respondent no. 2/prosecutrix recorded under Ss. 161 and 164-A of the Code, the medical examination of the respondent no. 2 and her age determination have corroborated the commission of offences by the petitioner/accused during investigation of the case and the final report/challan stands also filed before the competent court which is pending trial; that the DNA profiling of the new born baby who has subsequently died due to dehydration at SMGS Hospital, Jammu, respondent no. 2/prosecutrix and also of the petitioner/accused has been done and that the learned Trial Court has rightly dismissed the earlier bail application of the petitioner on merits as the offences committed by the petitioner are heinous and antisocial.