Excelsior Correspondent
Srinagar, Oct 6: The High Court today granted bail with certain conditions to a person accused in rape of a minor girl by recording that there is no ground to presume that the accused has committed the crime.
Justice Sanjay Dhar while granting bail to one Ishfaq Ahmad Khan said that without commenting upon merits of the case, lest it may prejudice the case of the prosecution, it appears that, prima facie, foundational facts that would give rise to the presumption under Section 29 of the POCSO Act against the petitioner, are not established in this case.
“Thus, prima facie, it appears that the presumption of guilt against the accused, in these circumstances, may not get triggered meaning thereby that there is no prima facie ground to believe that the petitioner has committed the alleged crime”, court said, adding with “ Section 29 of the Act raises a presumption of commission of an offence under Sections 3, 5, 7 and 9 of the POCSO Act against a person who is prosecuted for commission of the said offence, unless contrary is proved”.
Justice Dhar said that the court below while rejecting bail application of the petitioner has not taken trouble to even apply his mind to the statements made by the victim and her father under Section 164 Cr. P. C. The trial judge court said, has proceeded on the assumption that the victim has implicated both the accused in her statement and approached the cases of both the accused without actually appreciating the distinctive features of the roles played by the two accused.
“The material on record, as already discussed, clearly distinguishes the cases of the two accused. While the victim and her father have clearly implicated the co-accused but at the same time, they have stated nothing against the petitioner. This clear distinction between the cases of two accused has been missed by Special Judge while rejecting bail application of the petitioner”, Court said.
Court said the trial judge instead of applying his judicial mind to the material on record has concentrated more on impact of the alleged crime on the women education and considering the impact of a crime on the society, a Court, while deciding a bail application, has to form a prima facie opinion as to the involvement of the applicant in the alleged crime by applying its mind to the material on record.
Court concluded that the applicant deserves to be admitted to bail and accordingly directed him to furnish personal bond in the amount of Rs.50,000 with one surety of the like amount to the satisfaction of the trial court and appear before the trial court on each and every date of hearing with the direction to him not to leave the territorial limits of Union Territory of J&K without prior permission of the trial court.
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