Einstein once said, “The world will not be destroyed by those who do evil, but by those who watch them without doing anything”. So allowing the crime of rank immorality to happen is more a dangerous act than the act itself.
By Tariq Ali Mir
Court of second additional session judge Srinagar Tahir Khurshid Raina today delivered the following order in State Vs. Umar Ali Dar and others case”
In the matter of: Applications for grant of bail in favour of accused/applicants namely 1. Umar Ali Dar; 2. Umar Hamid Laway; and 3. Talib Parvaiz in case FIR No. 136 of 2017 of Police Station Nowgam under Section 363,376,109 RPC. Counsel for the accused/applicants. APP for the state.
1. By this common order, I propose to dispose off three separate bail applications, moved on behalf of accused/applicant namely Umar Ali Dar, Umer Hamid Laway and Talib Parvaiz for grant of bail in their favour on the grounds as enumerated in the applications as under:
a) That the accused/applicants are facing trial before this court under section 109,363 RPC . That the charge sheet presented before this court suggested that the petitioners have committed the offence under section 363, 109 RPC.
b) That the accused/applicants are facing pre-trial conviction in the instant case as there is no likelihood that the trial of the accused would get concluded in a short span of time which will result in great hardships to the applicants and their families.
c) That prosecution has already examined the so-called star witnesses i.e. PW1, PW2, PW3 and rest of the prosecution witnesses are formal witnesses. That of all the prosecution witnesses examined so far, it has been established that accused/applicants have not committed any heinous and serious offence which would have negated the bail plea of the applicants.
d) That applicants/accused are languishing in jail since October, 2017 in a case with which the accused/applicants have no direct or indirect connection viz-a-viz commission of the offence is concerned.
e) In case of accused/applicant Talib Parvaiz, in addition to the grounds enumerated above, the other ground which is prominently projected was his ailment which is aggravating on account of lack of proper look after and medical facilities in the jail. Lastly it has been prayed that applicants/accused be admitted to bail.
2. Ld. APP has filed his objections wherein he has stated that accused are involved in heinous non-bailable offence for which they cannot claim bail as a matter of right. He prayed for rejection of the bail.
3. I have heard ld. Counsel for the accused/applicants and have also gone through the challan file and statement of witnesses examined so far, for the limited purpose of deciding bail applications which are pending before this court.
4. The statement of the prosecutrix, who is the star witness of the case stands recorded in this case. Her statement generally matches with the prosecution case. She is quite minor of 14 years of age, studying in 8th standard. In her statement she has stated that she left the home in resentment against the beating by her mother. Later, she lost the way to home. It was now very late evening and was enquired by accused No.1, who was driving a motor cycle to take her at home. She took the lift. He then called another boy, who is accused No.2. Both took her along and on the way they met one more person accused No.3(Talib Parvaiz). They told accused No.3 to bring vehicle. Vehicle was brought and accused No.4 was in the vehicle. They all took her to a house. Finally the applicant/accused 1 and 2 left her at this house in the compelled company of accused No.3 and 4. Accused No.3 took some substance and slept, but accused No.4 raped her in the said room. She has further stated that she did not raise voice while being taken on motorcycle and then in the vehicle, because she treated them as brothers and she had no knowledge of routes to run away and raising voice may entail defamation for her.
5. It is apt to mention here that accused No.3 was on interim bail on account of his medical treatment, whereas, accused/applicants are behind the bar from the date of their arrest. All are charged for offences under section 363,376,109 RPC i.e. abetment to kidnapping and Rape. 6. As per prosecution story and statement of prosecutrix, accused No.3 (Talib Parvaiz) provided residential accommodation and brought vehicle in which prosecutrix was taken for commission of rape. As stated earlier, he was given interim bail on a limited ground of his ailment vide order dated 01-03-2018. The Senior Medical Officer Central jail, Srinagar vide his communication dated 26-02-2018 submitted the medical examination report relating to accused/applicant. On account of his various ailments shown in the said certificate, an interim bail was granted for his better checkup and treatment by his parents in any other specialized hospital.
7. Therefore, another discharge certificate of the accused was brought on record by the accused counsel. This certificate is of Institute of Mental Health Neurosciences, Kashmir, Srinagar. As per said certificate the UDS test of the accused was found negative. It is further opined in it that “attendants refused for giving any medication to patient.” The only concern which has been shown about his sickness is nothing serious except: Aggressive behavior, breaking home hold things and use of abusive language as mentioned in the said discharge certificate. These issues can be well taken care off in the jail.
8. Accused was given interim bail for medical treatment and checkup. Same is over and problem shown is not so serious at all as reflected in the foregoing paras and the discharge certificate on record.
9. Provisions to sub-section 1 of Section 497 Cr.PC talks of granting bail on the ground of sickness. This ground pertains to such a health situation which warrants very specialized treatment and care, which if not provided can prove fatal. Same is absolutely missing in the case of accused/applicant. Even he appears in the court and I do not found any such infirmity in him during the whole proceedings. Therefore, the health ground which has been pleaded and projected is devoid of any merit and does not sustain for grant of extension of bail.
10. Counsel for accused/applicants argued that prosecutrix conduct reflects her to be a willing partner. Moreover, the applicants are not charged for commission of heinous offence of rape and therefore they be enlarged on bail. Same is found contrary to the record. All the accused/applicants are charged for abetment of rape and kidnapping.
11. Offence of rape and outraging the modesty of feminine section is on rise in the society. Amendments of laws relating to Rape in 2013 in the country followed by more stringent amendments in the current year very much vindicates my view with regard to sharp rise in the crime and the concern of the society and the government. Prosecutrix as per her statement is raped by accused No.4, but to let it happen, all the three facilitated and abetted this nefarious act to happen. If in the very first instance, accused No.1 should have taken her to home, she would not have met such a shameful act which not only kills a lady, but also stigmatize her in the society, which is more worse than physical death of a person. And then the irony is, only she gets cursed in the society for being unchaste not the one who is perpetrator of such heinous crime against her.
12. Prosecutrix in the offence of rape is the star and sterling witness of the offence committed. Prima facie appreciation of her statement reflects the complicity of all the three applicants in the commission of abetment of rape with her by accused No.4.
13. Rape is such a heinous, shameful and immoral act where the abettor cannot get absolved in degree of culpability by showing this sham argument that he himself did not commit rape and the other did it. To facilitate this nefarious crime to be committed and even to abet the same is equal in degree in culpability as that of the Rapist himself. In the instant situation, if all three applicants had living conscious in them with a good degree of morality and probity, could have saved the chastity and modesty of a minor girl, who lost her way and should have taken her at home, reflecting morality and human values, but instead took her to the unknown destination, and got her raped.
14. Einstein once said, “The world will not be destroyed by those who do evil, but by those who watch them without doing anything”. So allowing the crime of rank immorality to happen is more a dangerous act than the act itself. It will amount to destruction of moral fabric of the whole society and will resultantly turn it into beast. If simple silence to the acts of illegality and immorality are so condemnable, then what to talk of an act whereby to abet and facilitate such an immoral crime to happen. It’s altogether equal in its degree of culpability, severity and immorality.
15. Country’s stature gets dwarfed when safety, security and modesty of women folk comes into debate in the world-fora in reference to burgeoning rate of crime against women in our country. As per latest NCRB (National Crime Record Bureau) date, incidents of rape have gone up by 12-15%, while other crimes have risen by 3- 5%. And voices against this shame state of affairs is on rise. Efforts are being made to curb this crime and in this loftily endevour courts will move intandam and will not act as mute spectator.
16. Gravity of offence, its impact on the society, evidence on record and punishment prescribed for the offence alleged to be committed are the illustrative golden principles to follow by the courts while granting bail to accused in non-bailable offences. When tested on the touchstone of what stand discussed in the foregoing paras, all the factors revealed above, goes contrary to the provision of bail to the accused/applicants, rather encourages the court to keep the offenders behind the bar. It is not only to curb their highly nefarious and illegal activity but to make them to meet the fate of their criminal activity, and at the same time to give a strong deterrent message to their ilk to fall in line of law and morality or else, law will take its course.
17. For the aforesaid reasons and the discussion, the bail pleas of the accused/applicants are hereby rejected.
18. Fact remains that the commonly recognized principle governing bail is that bail is a rule and jail is an exception. But same will not be applied in a case of heinous nature with serious implications in the society. Application of such a rule can embolden the perpetrators of this rank immorality and crime in the society.
19. Accused/applicant Talib Parvaiz is in the court. His bail bonds are rejected and he is accordingly taken into custody and be sent to Central Jail, Srinagar. His counsel has advanced the argument that bail once granted cannot be rejected if the accused has not violated any condition. This argument does not sustain as the interim bail granted was for limited purpose on the limited ground of his ailment. Same stand addressed in foregoing paras.
20. All the applications stand accordingly rejected and shall be made part of the main challan file.
21. However, for index purpose record of this application be separately prepared which after due completion be consigned to records.