J&K HC grants bail to men accused of raping their sister-in-law

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Summary

The Jammu & Kashmir and Ladakh High Court in Jammu on Monday granted bail to two men accused of gang-raping their brother’s wife. The court concluded that there appeared to be “a clear tendency on the part of the woman to make allegations that her in-laws had committed heinous crimes to settle the scores for her troubled marital life.”

“The manner in which respondent No. 2 (the woman) improvised at every stage brings the gang rape charge case against the plaintiffs into the realm of suspicion,” a single bench bench of Justice Sanjeev Kumar said.

The woman got married in October 2020 according to Muslim rites and rituals. A year later, she lodged a complaint with the Inspector General of Police (IGP) in Jammu, alleging that her father-in-law, mother-in-law and brother-in-law tortured, abused and harassed her on the next day of her wedding because she did not bring enough dowry .

The original FIR was registered under Sections 354/342, 498, 498-A, 504/506 of the IPC. Subsequently, offenses under Section 376, 376-D of IPC were added based on the statement of the woman recorded under Section 164 of CrPC. She claimed her husband’s real brother and a cousin raped her twice.

The defendants approached the Supreme Court seeking relief in the matter, which referred them to the appropriate court. In March this year, Jammu Sessions Judge (Special Judge for POCSO cases in the Fast Track Court) refused to grant regular bail to the accused brothers-in-law. Therefore, they have filed an application in the Supreme Court under Section 439 CrPC seeking the compensation.

The Supreme Court observed that there was no mention of the alleged incidents of rape and gang rape by the two men in the woman’s written complaint to the IGP, Jammu, which formed the basis of the FIR in the case.

Rather, the woman accused her brothers-in-law of rape for the first time in her statement under Section 164 of the CrPC without explaining why she did not mention these incidents in her written complaint to the IGP, the court observed.

It further highlighted that the woman herself had not stated the exact date, time and place of the alleged rape incidents in her statement under Section 164 CrPC.

Further, the court highlighted that the woman had even alleged rape by her father-in-law in a petition under the Domestic Violence Act, a fact which she neither stated in her complaint to IGP, Jammu nor stated in her statement under Section 164 had by CrPC in the present matter.

Although the court agreed with the woman’s lawyer’s argument that “FIR is not an encyclopedia which must disclose all the facts and details relating to the reported crime”, it held that “the distinction has to be made when the first informant is himself.” “or make yourself a victim”.

“It is equally important to keep in mind the difference between elaboration and improvisation. While elaboration of what is stated in the FIR by the first informant at the time of recording his statement is permissible, the same is not applicable to improvisation which has the result of creating a new offense against the person accused in the FIR,” said the Supreme Court.

It was held that there was no existence in the present matter prima facie or reasonable reason to believe that the plaintiffs had committed the crime of gang rape.

Given the documents showing that the defendants had cooperated with the police and the lack of evidence that they could influence the investigation if released on bail, the court accepted their request and granted them bail Deposit.

Lawyers who appeared in this case:

For Applicants: Mr. PC Patnaik, Advocate, Mr. Hemant Mishra and Mr. Abid Khan,

For the Respondents: Mr. Pawan Dev Singh, Dy. AG-for R1., Ms. Deepika Pushkar Nath, Adv. With Ms. Zarin Ali and Mr. Gazi Muzamil, advocates for R2.

Case title: Waseem Akram and Anr. v UT of J&K and another