Jammu And Kashmir High Court: Bail Granted To Woman Accused Of Facilitating Her Daughter’s Rape; Presumption Of Guilt Under Section 29 Of POSCO Act

The Jammu And Kashmir High Court in the case Naseema Begum Vs UT of Jammu And Kashmir observed wherein the Protection of Children from Sexual Offences Act, 2012, POSCO Act case was filed over alleged rape of her own daughter, the court granted bail to a woman, who being an accused of assisting the primary suspect in the POSCO case.
The bench headed by Justice Sanjay Dhar in the case observed and has stated that the presumption of guilt under Section 29 is rebuttable and if the accused in the case can demonstrate to the court during the trial that there is material evidence contradicting the presumption of guilt, the court may grant them bail.
In the present case, the FIR was registered with the Kupwara Police Station, wherein the victim who being the minor girl alleged that she was sexually assaulted by Shabir Ahmad War on multiple occasions, resulting in her pregnancy. Therefore, the petitioner, who being the mother of the victim was implicated as an accomplice in the crime and during the trial, the victim recanted her previous statement made as stated under section 164 of the Code of Criminal Procedure, 1973, wherein ascertaining that the victim’s mother had no involvement in the offence.
The bench of Justice Dhar while adjudicating the bail application analysed the statement made by the victims and the statement of other prosecution witnesses in order to observe that the petitioner had been able to establish a prima facie case for her innocence.
It has also been pointed out by the said court in the case that the statements of the victim made during her examination in chief and cross-examination whereby it has clearly been stated by her that the petitioner never administered any medicine to her for making her unconscious. Therefore, she also stated that her previous statement implicating the mother was made statement under the influence of police.
Further, the bench in the case observed and has highlighted the statements of the victim’s brothers who also testified in favor of the petitioner and no evidence was provided against her.
The court stated that the petitioner has been able to carve out a prima facie case for grant of bail in her favour. Therefore, the petitioner has suffered long incarceration during trial of the case and most of the material witnesses have already been examined by the prosecution. Accordingly, the court criticised the trial court for not taking into account that the victim had herself exonerated the petitioner in the case.