[POCSO Act] Jammu & Kashmir High Court refuses bail to aged woman booked for abetting minor's rape

Observing that just because she is an old lady she isn't entitled to get any relief, the Jammu and Kashmir and Ladakh High Court, last week refused to grant bail to a 63-year-old woman booked for aiding her 65-year-old husband to commit rape on a minor girl [Zubeeda vs Union Territory of J & K].Single-judge Justice Sanjay Dhar observed that the accused is not entitled to relief merely because she is an old lady.The Court noted that the 14-year-old victim was under the guardianship of the accused couple as her parents had sent her there to learn embroidery work from Zubeeda's husband."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 but the accused by indulging in abhorrent behavior with her, 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," Justice Dhar observed.The judge further noted that this isn't an ordinary case where the accused is a young person."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 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 offence alleged. The position of the petitioner qua the victim makes the offence all the more heinous. Thus, merely because the petitioner happens to be a woman does not entitle her to concession of bail in these circumstances," the judge added..As per the First Information Report (FIR) lodged by the victim's parents, they had sent her to the accused couple's house to learn embroidery. The victim lived for a week with them and during this time, the accused raped her twice.The victim testified even before the trial court that the petitioner Zubeeda had sprinkled some liquid on her face, which made her unconscious and after she gained sense, she found herself lying naked. She further stated that Zubeeda used to make her sleep between her and her husband.The judge further noted from the FIR that the issue came to light after the victim returned to her parents and the accused called her saying he would take care of abortion charges if she gets pregnant. He had even offered to pay ₹4,000 to Rs 5,000 to the victim's father for not reporting the case to the police..In its orders passed on May 21, the bench noted that Zubeeda is involved in commission of offence under Section 376/109 Indian Penal Code read with Sections 4 and 17 of the POCSO Act."Abetment of an offence carries the same punishment as is provided for that offence. 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 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 bench noted.The judge further noted that the trial in the case has just commenced and that only the victim's statement has been recorded so far while most prosecution witnesses including her parents are yet to be examined."The statements of other prosecution witnesses including the father and three more relatives of the prosecutrix are yet to be recorded. If the petitioner is admitted to bail at this stage, there is every apprehension that the prosecution witnesses, who happen to be the close relatives of the victim, would be influenced by the petitioner," the judge said in the order.The Court said that in the cases involving offences of serious nature falling under IPC or 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 and it is duty of the Court to ensure that victim 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," the single-judge stated.The judge, therefore, rejected the bail application..Senior Advocate BA Bashir and advocate Falak Bashir appeared for the bail applicant.Government Advocate Sajad Ashraf represented the Union Territory of Jammu and Kashmir. .[Read Order]