TOUSEEF AHMED Vs. STATE OF J. K

JUDGEMENT

(1.) THE accused / petitioner is facing trial in the Court of learned Sessions Judge, Kathua for commission of the offence as contemplated by S.376, R.P.C. The case of prosecution against the accused is that on 11-6-2006 at 6.30 p.m. the prosecutrix in the company of her mother and sister were going to the house of one Farooq Ahmed for fetching seasonal fruit. In the way as the mother of prosecutrix was to attend the call of nature, so she instructed the prosecutrix and her sister to go to the house of said Farooq Ahmed. On reaching there they did not find any one in the house. However, the accused / petitioner, who was living in the neighbourhood, came forward to deliver fruit to them. He took both the girls to the first floor of the house of Farooq Ahmed and asked the sister of the prosecutrix to wait in the varandah. Thereafter, he took the prosecutrix inside the room and committed rape on her. The victim came out from the room weeping, while the accused / petitioner escaped from the spot. The mother of prosecutrix when learnt about the occurrence, she along with the prosecutrix went to Police Station Bani, District Kathua and lodged the report. On the report being lodged, FIR No. 10/2006 was registered, which culminated into the filing of charge sheet against the accused for commission of the offence under S.376, R. P. C. During the course of investigation, the accused was arrested and presently is on a judicial remand.

(2.) BEFORE filing of the charge sheet, the accused filed an application for bail before the learned Judicial Magistrate, Ist Class, Bani, who dismissed the same. The accused thereafter filed another application for seeking bail before the Court of learned Sessions Judge, Kathua, who vide his order dated 12-8-2006 dismissed the same. Being not satisfied with the dismissal of his second application by the learned Sessions Judge, the accused / petitioner has filed the instant application in this Court for grant of bail.

(3.) THE contention of Mr. Goni is that the bar of granting bail in terms of S.497 is not applicable to the present case because the accused is not alleged to have committed the offence which is punishable with death or imprisonment for life. He argues that the accused has falsely been implicated in the case. He is a college going student, if is not admitted to bail his career is likely to be ruined. He submits that the case has been concocted and fabricated against the accused at the behest of uncle of the prosecutrix, namely, Abdul Majid Wani, who retired as an Excise Guard and who has two sons, namely, Javed Iqbal and Muzaffar Hussain serving in the Police Department as Constables. According to him, the family of said Abdul Majid Wani has long standing dispute with the family of petitioner / accused, so far settling the score a concocted story of raping a minor girl has been put up. He submits that the prosecutrix, who is said to be 15 years old, was examined by the Medical Board, which on examination found that she was habitual of sexual intercourse and there was no evidence of fresh sexual intercourse as the fluid taken did not indicate the presence of any spermatozoa. Thus, according to him, in the face of negative medical opinion, the possibility of accused having been framed in the case cannot be ruled out and, therefore, is entitled to the grant of bail.