Srinagar: Fast track court Srinagar presided over by Mr tahir khurshid Raina 2nd Addl sessions judge Srinagar denied bail to the rapist Mehraj-ud-din Dar by whose illegal & obnoxious act led to birth of an illegitimate child . Counsel for the accused took the plea that issue of minority of the prosecutrix is full of doubt and she was major , DNA report about the accused being father of child is negative as reported by the laboratory and there are contradictions and improvements in the statements of prosecutrix, her father and mother. That right to life & liberty of the accused stand violated on account of his continous incarnation. Court observed that so far as issue of minority is concerned, the school certificate enclosed with the chargesheet clearly shows her minor on the that of occurrence . So far as issue of DNA report is concerned, court observed that it’s the offence of Rape for which accused is being tried in this court and not paternity of the child where in DNA report has any impact.
The whole evidence has to be considered including that of prosecutrix who is the star witness of the case while deciding the bail application of the accused in the offence of Rape. Court observed that when statement of prosecutrix quite clearly talks about the commission of offence of Rape with her by the accused, then negative results of the test is not going to change the complexion of charge of Rape against him . Referring to Delhi High court judgment in case titled *Suleiman Ahamdi vs state* court declared this argument unsustained. On the ground of contradictions in statments, court observed that this is not the stage to appreciate the intrinsic quality of evidence , rather it’s the prima facie view of evidence to be considered for grant or refusal of bail to the accused. As the prosecutrix who is the star witness of the case has clearly and unambiguously targeted the accused for commission of Rape with her , that is sufficient to decide bail application. Her parents have also without any ambiguity stated the same.
Court observed that in view of bar on bail as contained in Criminal law amendment Act 2013 , bail is required to be rejected when there is prima facie evidence against him. Court observed that bar on bail in such offences will continue throughout trial except in a situation where evidence recorded before the court goes contrary to what’s submitted by the IO in his report u/sec 173 of the code. If evidence goes inline with the charge of Rape based on 173 report , the bar gets more accentuated. Court observed , the criminal law amendment Act 2013 which puts bar on bail has a lofty contxt which is well documented in the Act itself. As this new provision of bail starts with non obstante clause , it has an over riding effect over general provisions of bail in the code except that of the restrictions already put in the code . While addressing the argument of counsel for accused that right to life and liberty of the accused is being violated by his continous incarnation and amounts to pre trial conviction and punishment, court observed this right though quite sacrosanct can be taken over by a procedure established by law . Court further observed that when the whole society is concerned about the rise in crime against women, courts have to play an equally important role in curbing this menace and therefore a bold message to perpetrators of such crime is required to be given to ensure a safe and secured space to the women folk to grow to their fullest. With these observations court finally rejected the bail application of the accused.
