TARIQ AHMAD DAR Vs. STATE OF J&K

JUDGEMENT

(1.) Banking upon the frivolity of the prosecution initiated against the petitioner herein for commission of offence under Ss. 376, 506 RPC, the petitioner has prayed for to be admitted to bail on the contentions raised in the petition for consideration in this regard are :- The allegations in the impugned FIR are that the petitioner is alleged to have cheated the prosecutrix for the breach of promise to marry after consensual physical intimacy. The prosecutrix is a major person of more than 29 years and has falsely implicated the petitioner and succeeded to initiate prosecution as a result of police padding. There are no grounds to frame charges against the petitioner and the conviction is also not in sight in context to the material not corroborating the allegations. Therefore, the petitioner is entitled to bail for being kept at large. That the FIR has been registered after a period of ten days from the date of occurrence. The date of occurrence in the FIR dated 0o8.08.2018 is shown as 30/7/2018 and the investigation is concluded for two more occurrences of 16/6/2018 and 25/6/2018 disclosing the offence under Sec. 376 RPC. The investigating agency has registered the case for a delayed occurrence and the explanation tendered by the prosecutrix is absurd and without any credibility. The entire prosecution is vitiated by delay, as such, the petitioner is entitled to be enlarged on bail. That the allegations in the FIR do not disclose the offence under Sec. 376 RPC and best constitute breach of promise to marry. The consent is now shown to be obtained by any mistake, force or misrepresentation but it is only the breach of promise to marry that has persuaded the initiation of prosecution. There is no material collected by the investigating agency to connect the petition with the commission of offence charged with. On this count also, the Hon'ble Court may be pleased to enlarge the petitioner on bail in order to prevent pre-trial prejudice. That the investigation of the case has been conducted by Dy. S.P., Pulwama, for the occurrence that has taken place at Srinagar. The occurrence is stated to be complete at Srinagar and there is no continuity of offence to confer jurisdiction of investigation at District Pulwama. In this regard, it is submitted that the prosecutrix has succeeded in mobilizing the police for implicating the petitioner and the misuse of police powers becomes manifest from the conduct of investigation. The investigation of the case is most cryptic, without jurisdiction and cannot be countenanced under law. Since the investigation is complete and there is no question of tampering with the evidence of fleeing the course of justice as such, the Hon'ble Court may be pleased to the petitioner to bail.

(2.) Along-with the petition, petitioner has annexed copy of final report submitted by police before the concerned court, copy of medical examination report dtd. 8/8/2018, copies of statement of alleged victim dtd. 6/9/2018 and 3/10/2018.

(3.) The statements recorded on two occasions under Sec. 164-A Cr.PC of the alleged victim do not portray the similar background regarding the occurrence and the circumstances in which same is stated to have taken place. In the statement recorded on 3/10/2018 alleged victim stated that she had visited the residence of the petitioner herein at his native place where she made his family members conversant with the facts that her love with the petitioner(Tariq Ahmad Dar) was at the pinnacle but they were against their marriage. In the statement recorded earlier on 6/9/2018, it is stated that she continued to go to the residence of Tariq Ahmad Dar (petitioner herein) at Indra Nagar, Srinagar, where the petitioner was residing as a tenant and had proposed her to marry him which she initially turned down but later on consented for. During the various visits to the said place, petitioner herein was subjecting her to sexual intercourse forcibly. The family members of the petitioner are stated to have been resisting the proposal of marriage which compelled them to flee from their native place Pulwama. It also comes to fore that the place where the alleged sexual assault took place was at Srinagar.