Srinagar, May 22: The High Court of Jammu & Kashmir and Ladakh has denied to grant bail to a woman, accused of abetting and aiding her husband in raping a minor girl, while observing that it is not an ordinary offence where the perpetrator of the crime is a young boy but it is a case where the perpetrators of the crime happen to be the persons aged more than four times that of the age of the victim.
The court noted that the petitioner, Zubeeda, is alleged to have aided and abetted her husband, Arif Waza, the main accused, in commission of rape upon the prosecutrix, who, as per the prosecution case, was aged about 14 years at the relevant time.
Hearing a bail plea, the court of Justice Sanjay Dhar pointed out that the petitioner is aged about 63 years whereas her husband is aged about 65 years. The victim in this case is aged only 14 years.
It recorded that the material on record shows that the victim was sent by her father to the house of the petitioner to learn embroidery work.
"Thus, the victim was under guardianship of the petitioner and her husband. A bond of trust and confidence must have been reposed by the victim upon the petitioner and her husband," the bench observed.
By indulging in abhorrent behavior with the child victim, the court observed, the petitioner and her husband have shaken her trust and confidence and brought a bad name to the relationship of a child with her guardian who were as good as her parents.
The court observed that the gap in the age of the accused and the victim makes their alleged act more "heinous" and it shows an element of perversion in the alleged offence.
Merely because the petitioner happens to be a woman does not entitle her to concession of bail in these circumstances, the court said while dismissing a bail plea of the woman accused.
It recorded that abetment of an offence carries the same punishment as is provided for that offence.
Justice Dhar noted that Section 376(3) IPC provides punishment in a case where rape has been committed upon a woman under 16 years of age.
As per this provision, the court said, the punishment provided for such offence is not less than 20 years, which may extend to imprisonment for life.
"Thus, the offences for which the petitioner is facing trial are serious in nature," the court held.
The court ruled that in the cases involving offences of serious nature falling under Indian Penal Code (IPC) or Protection of Children from Sexual Offences (POCSO) Act, where the victim happens to be a minor child, the court has to be alive to the need for protecting the victims and the witnesses.
It held that it is the duty of the court to ensure that victims and witnesses, in such serious matters, are made to feel secure while deposing before the court.
"This can be ensured only if the statements of the victim and the material witnesses are recorded while keeping the accused behind the bars," Justice Dhar said.
The court further noted that the trial court had rejected the bail application of the petitioner on December, 31, 2021 and by that time the statement of the prosecutrix had already been recorded.
"Without there being any change of circumstances, the petitioner has rushed to this court and filed the instant bail application," it pointed out.
Justice Dhar recorded that it is true that this court is vested with the jurisdiction to entertain a bail application under Section 439 of the Cr. P. C even in a case where the trial court has refused to grant bail without there being any change in circumstances but then at least it was incumbent upon the petitioner to bring to the notice of this court any circumstance that would persuade the court to take a view different from the one taken by the trial court.
"The petitioner has miserably failed to point out any such circumstance. On this ground also, the bail application deserves to be rejected," the court said.