Full Text
HIGH COURT OF DELHI
KRISHNA .....Petitioner
Through: Ms. Tanya Agarwal and Mr. Gaurav Kalra, Advocates.
Through: Mr. Laksh Khanna, APP.
IO
Mr. Mukesh Hooda and Mr. Prashant Hooda, Advocates for Complainant.
JUDGMENT
1. The present application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023[1] (formerly Section 439 of the Code of Criminal Procedure, 1973[2] ) seeks regular bail in proceedings arising from FIR No. 36/2021 registered under Sections 363/365 of the Indian Penal Code, 18603 at P.S. Bhajanpura.
2. Briefly, the case of the prosecution is as follows:
2.1. On 19th January, 2021, a complaint was registered by one Mr. ‘NS’ alleging that on 16th January, 2021, around at 2:30 PM, he went for work “BNSS” “Cr.P.C.” “IPC” and when he came back home around 5:00 PM, his younger daughter Ms. ‘B’, aged around 16 years and elder daughter Ms. ‘S’, aged around 19 years, were not present at home, and both the girls have taken their phones along with them. He expressed apprehension that some unknown person had kidnapped them, leading to the registration of the present FIR. The initial investigation was carried out by ASI Satender.
2.2. During investigation, the Complainant told ASI Satender that his daughter, Ms. ‘S’, called him from an unknown number on his mobile phone and told him that she is in Baghpath, Uttar Pradesh. Acting on this information, ASI Satender, along with a police team and the Complainant, proceeded to the said location and recovered the girls. Medical examination was conducted at JPC Hospital and sexual assault kits were collected and forwarded to the Forensic Science Laboratory, Rohini, for DNA profiling.
2.3. In their medical history, the victims disclosed that following a dispute with their father, they had voluntarily left their home on 16th January, 2021 and travelled to Khajuri where they met an auto-driver namely Krishna (the Applicant), to whom they told their situation and asked help for arranging housing and jobs. The Applicant took both the girls to an OYO hotel in Sarai Kale Khan where the Applicant called his friend Rahul. The Applicant took Ms. ‘S’ in a separate room where he raped her and Rahul took ‘B’ in another room and he too committed rape multiple times.
2.4. On the following day, both girls were allegedly taken by the Applicant and Mr. Rahul to the residence of another co-accused, Prince, located in Yamuna Vihar. En route, one more individual, Salman joined them. It is further alleged that Salman sexually assaulted one of the girls at Prince’s residence. The victims stayed at the said residence for two days before being asked to leave. Thereafter, they travelled to Baghpat, Uttar Pradesh where they contacted their father from the mobile phone of a police officer. Hence, Sections 363/365/354/323/376/368/506/34/120B of IPC and Sections 4/6/21 of the Protection of Children from Sexual Offences Act, were added.
2.5. On 20th January, 2021 statements under Section 164 of Cr.P.C. of both the girls were recorded. On the same day, the Applicant, along with Rahul, Salman, and Prince, was arrested and remanded to judicial custody.
2.6. During the course of investigation, the police visited the OYO hotel where the alleged incident had occurred. The victims identified the property, and entries in the hotel register reflected the names of the victims, the Applicant and Rahul. A notice under Section 91 of Cr.P.C. was served on the hotel manager to produce relevant records. A site plan of the premises was also prepared at the instance of the victims.
2.7. The CDR of accused Rahul and Salman were analysed and it was revealed that the location of the accused Salman was in Yamuna Vihar on 17th January, 2021 from 12:13 PM to 6:53 PM and both the accused, Rahul and Salman, were continuously calling each other.
2.8. By order dated 24th February, 2021, co-accused Prince was granted bail by the learned ASJ, Karkardooma Courts, on the ground that there was no direct allegation of sexual assault against him. The only allegation against him was that, despite being informed about the assault, he failed to inform the police and allowed the victims to stay at his residence, thereby attracting offences under Section 368 IPC and Section 21 of the POCSO Act. “POCSO Act”
2.9. The FSL result was later received, which confirmed that seminal stains were found on the clothing of both victims. Specifically, a mixed DNA profile from the elder victim’s pyjama matched both her own blood sample and that of the Applicant.
3. Counsel for the Applicant states that the Applicant has been falsely implicated and urges the following grounds in support of his request for bail:
3.1. The Applicant has been in judicial custody since 20th January, 2021, amounting to over 4 years of detention. The investigation in the matter has been concluded, chargesheet has already been filed and the case has progressed to the stage of recording prosecution evidence. It is submitted that continued detention of the Applicant, in the absence of any risk of tampering with evidence or influencing witnesses, would serve no useful purpose.
3.2. It is an undisputed fact that the victims left their home voluntarily after a dispute with their father. They carried their mobile phones with them, thereby demonstrating that their departure was of their own free will and not under coercion. The victims themselves approached the Applicant and sought his assistance in arranging temporary accommodation and employment and agreed to go with him. In such circumstances, no offence under Sections 363/365/368 of IPC are made out.
3.3. The allegations of sexual assault by the Applicant are only confined to Ms. ‘S’, who was a major at the time of the incident. Ms. ‘B’ has not levelled any allegations of rape or sexual assault against the Applicant. The victims’ testimonies before the Court, makes it abundantly clear that no such offence was committed by the Applicant against Ms. ‘B’.
3.4. The relationship between the Applicant and Ms. ‘S’ was entirely consensual. The sequence of events, as narrated by Ms. ‘S’ leading to the alleged incident, as well as the conduct of Ms. ‘S’ before and after, indicate that she willingly engaged in a physical relationship with the Applicant. Pertinently, the victims stayed with the Applicant for 3 days at the house of Prince after the alleged incident, without raising any alarm. At all times, they had access to their mobile phones but did not seek assistance from the police or the staff of the hotel where the incident took place. Moreover, MLC report of Ms. ‘S’ does not record any signs of physical struggle, injuries, bleeding, or scratches, indicating the absence of force or coercion. Given these factors, it is urged that the allegation of rape lacks credibility and does not justify continued incarceration.
3.5. There are material contradictions in the statements of the two victims regarding the involvement of accused Salman. In her testimony, Ms. ‘S’ claims that she witnessed Salman sexually assaulting Ms. ‘B’, whereas Ms. ‘B’ herself does not make any such allegation. Such discrepancies cast doubt on the overall reliability of the prosecution’s case.
3.6. The Complainant is habitual of filing complaints of a similar nature. It is stated that on two earlier occasions, cases were registered on similar allegations, one of which resulted in acquittal and the other was compromised. These prior instances, it is submitted, cast a shadow of doubt on the present FIR and suggest a tendency to misuse legal processes.
4. Per contra, Mr. Laksh Khanna, APP for the State, and Mr. Mukesh Hooda, counsel representing the victims, strongly opposes the bail application and submit as follows:
4.1. The Applicant exploited the vulnerable position of two young girls who had just left their home. Under the guise of providing assistance, employment and shelter, he lured them into a situation where they were subjected to sexual assault. The victims never consented to any sexual act, and the Applicant’s argument of consensual relations is a mere afterthought.
4.2. While there may be minor inconsistencies in the accounts of the two sisters concerning the role of accused Salman, there is no such inconsistency or ambiguity in the allegations against the Applicant. Both victims have consistently stated that Ms. ‘S’ was sexually assaulted by the Applicant whereas Ms. ‘B’ was sexually assaulted by co-accused Rahul. No allegations of sexual assault were made by Ms. ‘B’ against the Applicant. Thus, the core allegations remain intact, and any minor discrepancies do not weaken the prosecution’s case.
4.3. In addition to the victims’ consistent testimonies, there exists strong forensic and circumstantial evidence linking the Applicant to the offence. The DNA profile of the Applicant has been matched to seminal stains found on the pyjama of Ms. ‘S’. The entry register of the OYO hotel also reflects the names of the Applicant and Rahul on the relevant date, corroborating the victims’ statements about the location and events. These scientific markers lend credibility to the prosecution’s version and directly implicate the Applicant.
4.4. The trial is presently at an advanced stage. Out of 23 prosecution witnesses, 14 have already been examined, and the remaining are largely formal witnesses. At such a juncture, grant of bail would risk derailing the proceedings, particularly considering the nature of the offence and the potential for witness intimidation or evidence tampering. The gravity of the allegations, coupled with the strength of the evidence on record, militates against the grant of bail at this stage.
5. The Court has carefully considered the aforenoted facts and contentions and examined the material on record.
6. Determining whether a case warrants bail involves a nuanced evaluation of various factors. The parameters for granting bail are limited to assessing whether a prima facie case exists against the accused, whether there is a possibility of witness tampering or the accused absconding and whether the severity of the offence warrants continued incarceration. At this stage, the Court is not required to engage in a detailed examination of the evidence to conclusively establish guilt, as such an exercise would be akin to conducting a mini-trial. The focus lies in assessing whether there are prima facie or reasonable grounds to believe the accused committed the crime, while weighing whether their continued custody aligns with the objectives of the criminal justice system.[5]
7. The Applicant contends that he has been falsely implicated and that the victims had voluntarily left their home and sought his help. This does not mitigate the severity of the allegations against him. The material on record suggests that both the victims were in a vulnerable state, having just left their home after a dispute with their father, and the Applicant took advantage of their situation under the pretext of offering them assistance. This aspect is crucial, as victims of such offences are often in circumstances where their ability to make independent decisions is compromised, making them susceptible to exploitation. Courts have consistently held that in cases of sexual assault, the issue of consent must be scrutinized with great care, particularly when the complainant alleges coercion or exploitation in a state See also: Brijmani Devi v. Pappu Kumar& Anr., (2022) 4 SCC 497 and Mahipal v. Rajesh Kumar @ Polia, 2020 (2) SCC 118 of emotional distress. The Applicant’s argument that their departure was voluntary cannot absolve him of the alleged acts committed thereafter.
8. The Applicant’s reliance on prior complaints made by the Complainant to cast doubt on her credibility is prima facie misplaced. Bail considerations are case-specific, and past allegations, unless conclusively proven to be false in a manner affecting the credibility of the present case, cannot be a decisive factor at this stage. The issue of whether the Complainant has misused legal provisions in the past is a matter to be tested during trial and not at the stage of bail.
9. The Applicant further contends that there are inconsistencies in the prosecution’s case, particularly regarding the role of co-accused Salman. However, it must be noted that the presence of some discrepancies in relation to a co-accused does not, in itself, dilute the case against the Applicant. The testimonies against him have prima facie, remained largely consistent. Courts have repeatedly held that minor inconsistencies in witness statements, particularly in cases involving sexual violence, do not vitiate the prosecution’s case unless they go to the root of the matter.[6]
10. The Applicant has also sought to cast doubt on the prosecution’s case by drawing attention to the conduct of the victims following the alleged incident, particularly the fact that they had breakfast with the Applicant and Rahul the next morning, and that, despite being in possession of mobile phones, they neither made any distress call nor attempted to escape. According to the Applicant, such behaviour is inconsistent with the conduct of individuals who have just experienced a traumatic event and therefore, See also: State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and State of H.P. v. Sanjay Kumar, (2017) 2 SCC 51 undermines the veracity of their allegations. However, this line of argument, though not entirely irrelevant, cannot prevail at the stage of bail. The victims have been cross-examined on these very aspects during trial and have offered plausible explanations for their conduct. Whether their explanations withstand scrutiny is a matter best left to be determined after full evaluation of the evidence at trial. At this stage, the Court is not required to delve into a meticulous appraisal of credibility or weigh the probative value of rival accounts. As already noted, a mini-trial is impermissible at the stage of considering bail, and in the present facts, no compelling ground is made out for grant of bail.
11. Additionally, the forensic and circumstantial evidence in this case lends support to the prosecution’s case. The DNA report linking the applicant to the victim, along with the corroborative material such as the entry register of the hotel, strengthens the prima facie case against him. At the present stage, these factors, coupled with the serious nature of the allegations, do not warrant the grant of bail. The trial is already at an advanced stage, with most of the prosecution witnesses having been examined.
12. Given the totality of circumstances, including the gravity of the offence, the vulnerability of the victims, the consistent testimonies against the Applicant, and the settled legal position regarding discrepancies in testimonies of victims, this Court finds no merit in the bail application.
13. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
14. For the foregoing reasons, the present application is dismissed.
SANJEEV NARULA, J APRIL 2, 2025 d.negi