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Synopsis

The High Court of Jammu & Kashmir and Ladakh at Srinagar, addressing multiple petitions and a bail application arising from a 2022 kidnapping and assault case, has granted bail to three men accused in the given case. The court also discharged three others alleged to have been involved in the case.

The court, presided over by Justice Sanjay Dhar, delivered the decision noting that the prosecution's evidence did not sufficiently establish the accused as habitual offenders or present a risk of tampering with evidence or intimidating witnesses.

The case originates from a First Information Report (FIR) involving accusations under Sections 363, 109, 376, 511, 366-A, 354-B, and 506 of the Indian Penal Code (IPC), as well as Sections 8 and 12 of the Prevention of Children from Sexual Offences (POCSO) Act.

The father of the victim reported on May 16, 2022, that his minor daughter was kidnapped by Zahid Ahmad Lone and his family members. The victim was later recovered, but initially refused a medical examination. After persuasion by the Child Welfare Committee, a medical examination was conducted, revealing no penetrative sexual assault.

The victim's statement under Section 164 Cr.P.C. detailed that on May 16, 2022, while waiting at a bus stop, she was approached by two unknown men on a motorcycle who sprayed a chemical on her. She was forced into an Alto vehicle with Zahid Ahmad Lone. She was taken to a secluded house where she found Zahid Ahmad Lone and Irshad Ahmad Dar. They discussed making a nude video of her for ransom. Zahid Ahmad Lone attempted to rape her while she was unconscious. Upon regaining consciousness, she resisted further rape attempts, but her clothes were torn. Zahid Ahmad Lone was in contact with his sister Shabnam Mushtaq and his father Mushtaq Ahmad via phone. His sister instructed him to kill the victim. Ishfaq Ahmad Lone attempted to strangle her, and threats were made to kill her brother if she testified. The victim was eventually taken to Ghulam Hassan Lone's house and handed over to her maternal uncle due to police pressure.

Accused Petitioners Mohammad Sultan Reshi, Shabnam Mushtaq, Gulshan Begum, and Ishfaq Ahmad Lone challenged the trial court's decision to frame charges against them. Additionally, Zahid Ahmad Lone, Mushtaq Ahmad Lone, and Irshad Ahmad Dar sought bail, arguing their prolonged detention and the inconsistency of the victim's statement.

The petitioners argued there is no direct evidence linking them to the alleged crimes. They highlighted the victim's initial refusal of a medical examination, inconsistencies in her statement under Section 164 Cr.P.C., and the lack of evidence for penetrative sexual assault. They claimed the charges under Sections 376, 366-A IPC, and Sections 8 and 12 of the POCSO Act are unsubstantiated. Additionally, they suggested the involvement of family members indicating possible fabrication, and the described threats lacking physical evidence or independent witnesses.

In contrast, the prosecution argued the victim's detailed statement under Section 164 Cr.P.C. provides a coherent narrative, identifying the petitioners and detailing their actions. They contended the medical examination's findings do not negate charges of kidnapping, threats, and attempted assault. They explained the victim’s refusal for an initial exam is understandable due to trauma. The prosecution highlighted communication between the petitioners and threats made to the victim, supporting charges under Sections 506 and 511 IPC, and maintained that sufficient evidence exists to substantiate the charges.

With regards Mushtaq Ahmad Lone, the court said “even if the prosecution case is assumed to be correct, prima facie, it can be stated that he is not involved in the alleged crime.” The court noted that “the allegation against accused Mushtaq Ahmad Lone is that he was in touch with his son i.e. petitioner Zahid Ahmad Lone on telephone, meaning thereby he was not even present on spot.”

The court further noted significant progress in the trial and the recorded statements, indicating that granting bail posed minimal risk of witness tampering. The court also recognized the age proximity and alleged relationship between Zahid Ahmad Lone and the victim, adding credibility to the petitioners' claims. “There is a difference of only three years in the age of the victim and the age of the main accused, both of whom are at the threshold of their youth,” the court remarked.

The court found no substantial evidence implicating Mohammad Sultan Reshi. The victim's statements did not directly accuse him, and his alleged involvement was limited to the ownership of a vehicle used post-incident. Therefore, the court set aside the trial court's order framing charges against Reshi and discharged him from the case.

On the other hand, the court dismissed the petition filed by Shabnam Mushtaq, Gulshan Begum, Ishfaq Ahmad Lone, on procedural grounds, noting that the petitioners had not yet participated in the trial court proceedings. The court advised them to surrender and present their arguments before the trial court during the consideration of charge/discharge.

Consequently, the court granted bail to Zahid Ahmad Lone, Mushtaq Ahmad Lone, and Irshad Ahmad Dar, considering the advanced stage of the trial and the recorded statements of key witnesses, including the victim.

 

Cause Title: MOHAMMAD SULTAN RESHI, SHABNAM MUSHTAQ & ORS, ZAHID AHMAD LONE & ORS. V UT of J&K [Crl. R No.07/2023 c/w Crl. R No.16/2023 , Bail App No.17/2024]