‘Violated survivor, orphaned child’: Jammu and Kashmir and Ladakh High Court denies bail to gang-rape accused

Justice Rajnesh Oswal said the allegations levelled against the accused strike at the very conscience of society.

“The accused, by their alleged actions, have not only violated the dignity of the survivor but have also effectively orphaned a child, leaving her to the mercy of the state or charitable institutions,” the Jammu and Kashmir and Ladakh High Court said in its April 24 order.

The order added that the allegations levelled against the petitioners are not only grave and heinous but strike at the very conscience of society.

Gang-rape, aftermath

The matter originated from a case registered under sections involving gang-rape, common intentions, and criminal intimidation of the Indian Penal Code (IPC). While the initial First Information Report (FIR) only named one accused, the survivor’s statement to the magistrate under Section 183 of the BNSS implicated another accused as well.

The survivor alleged that she was raped multiple times by the first accused and thrice by another accused. As a result of the assaults, the survivor gave birth to a child. DNA profiling later confirmed the first accused as the biological father of the child, as the DNA of the other accused did not match.

Appearing for one of the accused, advocate Narinder Kumar Attri submitted that the prosecutrix had stated in her cross-examination that had she not become pregnant, she would have never made any complaint before the police.

He has further argued that there are different versions of the prosecutrix with regard to the occurrence. As such, the petitioner deserves to be enlarged on bail.

Appearing for the second accused, advocate A Bhat argued that the petitioner was never named as an accused in the FIR, and he has been falsely implicated in the case. He further submitted that the prosecutrix had made contradictory statements in her deposition before the trial court.

State’s stand

Representing the state, government advocate Eishaan Dadhichi submitted that the petitioners have been charged for commission of the said offences and as a result of the commission of rape of the prosecutrix, a girl child was also born, who was surrendered by the prosecutrix to the Child Welfare Committee.

He vehemently argued that both the accused sexually exploited the poor girl, and she categorically made a statement against them. He pointed out that while considering the bail application, evidence cannot be appreciated.

‘Child bears lifelong stigma’

• In matters of gang-rape, the individual liberty of the accused must yield to the collective interest of the community and the need to protect the survivor from potential intimidation.
• The material on record, including the medical evidence and the birth of a child as a direct consequence of the alleged repeated sexual assault, prima facie establishes a case of extreme depravity.
• The Jammu and Kashmir and Ladakh High Court cannot remain oblivious to the tragic fate of the innocent child born out of this heinous act.
• The child, already bearing the lifelong stigma of being born from such a traumatic event, now faces the double blow of abandonment by the mother, who herself is likely grappling with profound psychological scars.
• This cascading effect of the crime, where a new life is rendered vulnerable and destitute from birth, adds a layer of social and moral depravity that weighs heavily against the grant of any discretionary relief.

Accused may influence witnesses: Order

• The survivor’s girl child was surrendered by her and is with the Special Adoption Agency (SAA).
• After the conclusion of the investigation, a chargesheet for commission of offences under Sections 376-D, 34 and 506 IPC was filed against the petitioners before the learned trial court and charges for commission of the above-mentioned offences were framed against the petitioners.
• There are serious allegations of sexually exploiting the prosecutrix against the petitioners.
• The name of the one accused was not mentioned in the FIR initially, but subsequently, in her statement before the magistrate, she categorically deposed against him.
• As a result, the investigating officer deleted the offence under Section 376 (rape) IPC and added an offence under Section 376-D (gang-rape) against both the accused.

• The Jammu and Kashmir and Ladakh High Court has examined the statement of the prosecutrix, and it is not forthcoming from her statement that the prosecutrix has either exonerated the petitioners or has turned hostile against prosecution.
• The petitioners, in fact, want this court to appreciate evidence of the survivor, which this court cannot, while considering the bail application.
• It is settled law that while considering the bail application, the court can only look into the evidence to find out whether there is any evidence against the accused or not.
• But it can in no manner appreciate the evidence brought on record – the exercise is to be conducted by the trial court while deciding the case.
• Given the nature of the evidence, the severity of the punishment prescribed under Section 376-D of the IPC, and the high probability of the accused influencing witnesses or tampering with evidence in a case of this magnitude, this court finds no merit in the application.