Read Time: 08 minutes

Synopsis

The Jammu & Kashmir and Ladakh High Court at Jammu on Monday granted bail to two men accused of gang-raping their brother's wife. Court held that there appeared "a clear tendency of the woman to make allegations involving her in-laws in heinous offences in a bid to settle scores for her disturbed marital life".

"The manner in which the respondent No.2 (the woman) has improvised at every stage brings the prosecution case of gang rape against the petitioners in the realm of suspicion," said a single judge bench of Justice Sanjeev Kumar. 

The woman got married in October 2020 as per Muslim rites and rituals. One year later, she filed a complaint before the Inspector General of Police (IGP), Jammu alleging that her father-in-law, mother-in-law, and brother-in-law had been torturing, abusing, and harassing her from the very next day of her marriage for not bringing enough dowry.

The initial FIR was registered under Sections 354/342, 498, 498-A, 504/506 of the IPC. Subsequently, offences under Section 376, 376-D of IPC were added to it based on the woman's statement recorded under Section 164 of CrPC. She alleged that her husband's real brother and one cousin raped her twice. 

The accused persons went up to the top court for relief in the matter which redirected them to jurisdictional court. In March this year, Sessions Judge (Special Judge, Fast-track Court POCSO Cases), Jammu declined to grant regular bail to the accused brothers-in-law. Hence, they moved the high court by filing an application under Section 439 CrPC seeking the relief.

The high court noted the absence of any 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 CrPC, without explaining why she didn't mention these incidents in her written complaint to the IGP, court noted. 

It further emphasised that even in her statement under Section 164, CrPC, the woman did not give the exact date, time, and place of the alleged incidents of rape. 

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

Though the court agreed with the argument put forth by the woman's counsel that "FIR is not an encyclopedia which must disclose all facts and details relating to the offence reported", it held that "the distinction needs to be drawn where the first informant is himself or herself a victim".

"It is equally significant to bear in mind the distinction between elaboration and improvisation. While elaboration of what is stated in the FIR by the first informant at the time of recording his or her statement is permissible, the same is not true of improvisation which has the result of creating a new offence against the person accused in the FIR," the high court said. 

It held that in the matter at hand, there was no prima facie or reasonable ground to believe that the petitioners had committed the offence of gang rape.

Therefore, considering the documents indicating cooperation with the police by the accused men and the absence of evidence suggesting they could influence the investigation upon release on bail, the court allowed their petition and granted them bail.

Advocates who appeared in this case:

For petitioners: Mr. P. C. Patnaik, Advocate, Mr. Hemant Mishra & Mr. Abid Khan,

For respondents: Mr. Pawan Dev Singh, Dy. AG-for R1., Ms. Deepika Pushkar Nath, Adv. With Ms. Zarin Ali & Mr. Gazi Muzamil, Advocates-for R2.

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