The High Court of Jammu and Kashmir refused bail to a rape accused while refusing to take liberal approach as that would be against the interests of the society. Justice Sanjay Dhar, while hearing the bail application considered the statement of the prosecutrix that the petitioner had threatened to cause hurt to her and her family if she does not withdraw the case.
The petitioner was seeking regular bail in a case where he was accused by a girl that he developed illicit relations with her against her will, and also promised that he would marry her, and further threatened her with dire consequences if she disclosed this relationship to anyone. After investigation, the police concluded that charge of rape was made out against the petitioner. The petitioner had approached the trial court for bail but the same was denied in October, 2020.
The petitioner sought bail on the grounds that the prosecutrix had wilfully and intentionally, out of her free consent, entered into a relationship with petitioner. He further contended that her statement recorded does not inspire confidence and due to her refusal to undergo medical examination, adverse inference has to be drawn against her in regard to her age, character, antecedents and truthfulness of her claim.
The prosecutrix has contended that she was friendly with the petitioner and this relationship between them continued for quite a long time, and that he had promised to marry her.
The court found merit in the submission that prosecutrix was quite friendly with the petitioner for a long time but held that “yet the same does not give a license to petitioner/accused to have sexual relations with her, without her consent”. The court further observed that since the prosecutrix had barely attained majority few months prior to the lodging of the F.I.R, the petitioner’s contention that “the prosecutrix due to her love and passion for the petitioner had developed sexual relationship with him since she was in 10th class may not be of any help to the case of the petitioner for the reason that the past sexual relationship of the prosecutrix with the petitioner, if any, would constitute offence of rape, irrespective of the consent”.
While considering the question of bail, the court opined that rape is not merely a physical assault but it is destruction of the personality of the victim and hence taking a liberal approach while granting bail in such cases would be against the interests of the society.
The court pointed out that in her statement, the prosecutrix has stated that she was threatened by the petitioner and his friends that her family would be done away with in case she does not withdraw the case against him, and hence there is possibility that if enlarged on bail the petitioner will threaten the prosecutrix. Hence, the court held that granting bail, despite the statement of the prosecutrix, may thwart the course of justice. The court thus denied bail to the petitioner.
The complete order may be read here.