Full Text
HIGH COURT OF DELHI
JUDGMENT
KARAN CHANDELA ..... Petitioner
Advocates who appeared in this case:
For the Petitioner : Mr. Jatan Singh, Mr. Tushar Lamba and
Mr. Siddharth Singh, Advocates For the Respondent : Mr. Shoaib Haider, APP for State with
W/SI Chandrika, P.S. Tilak Nagar.
Mr. R.N. Shara, Mr. Shalabh Bhardwaj, Mr. Nikhil Mann and Mr. Himanshu Solanki, Advocates for R2/Complainant.
[ The proceeding has been conducted through Hybrid mode ]
1. The present application on behalf of the applicant has been filed under section 439 of the Code of Criminal Procedure, 1973, seeking regular bail in FIR No. 476/2019 dated 20.09.2019 registered u/s 306 IPC at P.S. Tilak Nagar, New Delhi.
2. The case of the prosecution is as under:a. On 19/09/2019 at 07:55 PM, a PCR Call was received at P.S. Tilak Nagar regarding "a 19 years girl having hanged herself, and she was declared ‘brought dead’ at Vashisth Hospital, Ganga Ram Vatika", which was entrusted to S.I. Vinod for investigation. b. Thereafter, S.I. Vinod along with the staff, reached at the said hospital and received MLC No 217/19 dated 19.09.2019 of Deceased (M) Age-19 with A/H/O brought dead & history of strangulation/hanging. The dead body of deceased (M) was got preserved in DDU Hospital Mortuary for further necessary proceedings. c. The spot i.e., 2 Floor, WZ-26A, Mukherjee Park, Tilak Nagar, Delhi was visited by S.I. Vinod Kumar where a multi-colored Chunni was tied with ceiling fan and a black iron chair was laid on bed. Thereafter, the crime team was informed and after inspecting, the above-mentioned Chunni "ligature material" was cut in two pieces with the help of knife and the same was sealed at the spot and taken in police possession through seizure memo. d. Investigation revealed that the main door of the house was closed from inside and the door was opened by cutting grill with the help of a person namely Vicky. Thereafter, the mother of the deceased handed over a mobile i-phone-X, black coloured and an Apple laptop which was used by the deceased (M) and the same was taken in police possession through a separate seizure memo. e. That on 20.09.2019, the post mortem of deceased (M) was conducted at DDU Hospital Mortuary vide PM No. 1625/19 and after conducting Post Mortem, the doctor gave two sealed pulanda of "Vaginal swab external & internal" and "Clothes of deceased (M)" with the seal of DDUH PM, and the exhibits were taken in police possession through seizure memo and deposited in Malkhana and the same have been sent to FSL Rohini for expert opinion. f. On 20.09.2019, a case vide FIR No. 476/19 u/s 306 IPC, 1860 was registered on the statement of deceased's mother "SD". The complainant stated that she resided with her daughter M. On 19.09.2019 i.e. the date of incident, she went to have her eyes checked at the Spectra Eye Hospital in Greater Kailash. After getting free from there, she called her daughter/deceased (M) at about 6 p.m., who did not pick up the call. After that, at about 7 p.m., she got a call from the deceased’s friend Ms.S saying that deceased (M) was not picking up her phone. The complainant told her that she would ask M to call her after reaching home. When she reached home, despite ringing door bells, knocking on the door and calling on the phone, nobody came to open the door. She then called her neighbor Vicky and after cutting the door, they entered into the house. The mother of the deceased saw that ‘M’ was hanging from the fan. She brought ‘M’ down with the help of Vicky/neighbor and took her to the nearby Vashisht hospital where the doctor declared her dead. After a while, ‘S’, who is a friend of the deceased came to the hospital and told the complainant that deceased ‘M’ was very upset and had told ‘S’ that a boy named Karan Chandela, the applicant herein used to blackmail and threaten the deceased ‘M’ on account of uploading on social media the obscene videos and photographs of the deceased ‘M’ taken by the applicant. It is further alleged that ‘S’ had told to the complainant that the applicant raped the deceased many times and on 19.09.2019, the deceased ‘M’ went to meet the applicant in a hotel and after coming back from the hotel, the deceased committed suicide. g. That on 28.09.2019, as per the facts and circumstances of the case and on the basis of the statements given by the witnesses', section 376 IPC was added in this case.
CONTENTIONS OF THE APPLICANT
1. Mr. Jatan Singh, learned counsel for the applicant submits that the applicant and the deceased were in a consensual relationship in the nature of boyfriend and girlfriend from two years prior to the date of incident, which is not disputed. He submits that the applicant has not disputed the relationship, though vehemently disputes the version of the prosecution. According to Mr. Jatan Singh, a false case has been foisted upon the applicant who was a young boy of 20 years at the time of the alleged incident.
2. Learned counsel also submits that, there is no dispute that the applicant and the deceased were having consensual sexual relations and as such, the allegation of rape having been committed by the applicant on the deceased is without any legs to stand. In any case, learned counsel submits that there is no evidence, oral, documentary or scientific, which could even prima facie show any of the ingredients of Section 376 IPC having been committed by the applicant upon the deceased. According to learned counsel, no incriminating evidence has come out of the scientific analysis conducted by the FSL and therefore, there is nothing to connect the applicant to the offence under Section 376 IPC. In fact, according to the FSL report, nothing was detected on the vaginal swab and so far as the medical examination is concerned, the same revealed old tearing of hymen membrane which too tilts the case in favour of no offence of rape having been committed by the applicant upon the deceased on the day of the alleged incident.
3. Learned counsel, while referring to the FIR dated 20.09.2019, submits that the Complainant who is the mother of the deceased has made all the false allegations, particularly in respect of some explicit/objectionable videos/photographs of the sexual relations with the deceased and had used the same to blackmail the deceased and to commit rape upon her.
4. Learned counsel submits that the allegations against the applicant are that such blackmail and physical sexual abuse by the applicant drove the deceased to commit suicide. Learned Counsel submits that there is nothing placed on record by the prosecution to show that any such videos were being used by the applicant to blackmail the deceased. According to learned counsel, no photographs or videos of any relation between the applicant and the deceased were found on the mobile phone of the deceased and it was only the mobile phone of the applicant, which he voluntarily surrendered, that contained some pornographic videos and photographs. Learned counsel submits that such content on its own cannot be violation of law and surely not an offence.
5. Learned counsel also emphasizes on the fact that the main witness who is also stated to be a close friend of the deceased namely Ms. S, though had given a very evasive statement under Section 161 Cr.P.C., 1973, however, did not refer to any allegation of rape in her statement under section 164 Cr.P.C. In any case, learned counsel submits that the said star witness has already turned hostile and does not support the case of the prosecution at all. He further submits that Ms.S had given a specific complaint against the mother of the deceased to the extent that the mother of the deceased had pressurized her to give a statement against the applicant, else she would get her implicated in false criminal cases, which was also elicited during her cross-examination. Thus, according to Mr. Singh, the entire case of the prosecution falls flat and the applicant would be entitled to bail.
6. Learned counsel for the applicant also relied upon the judgements in Union of India (UOI) Vs. K.A. Najeeb AIR 2021 SC 712; Arnab Manoranjan Goswami Vs. The State of Maharashtra and Ors. AIR 2021 SC 1; Prabhakar Tewari Vs. State of U.P. and Ors. (2020) 11 SCC 648; Navendu Babbar Vs. State of NCT of Delhi 2020/DHC/2125; Rahul Raj Singh Vs. The State of Maharashtra 2016 SCC OnLine Bom 6332, to support his aforesaid submissions. STATE’s CONTENTIONS
7. Per contra, Mr. Haider, learned APP submits that originally, the FIR was registered under Sections 306 IPC, however, the offence under Section 376 IPC was added subsequently after the initial investigations conducted by the prosecuting agency, pointing towards the complicity and culpability of the applicant.
8. Learned APP submits that the present case is built around circumstantial evidence. The fact that the applicant and deceased (M) met on 19.09.2019, according to learned APP, is not disputed. According to him, it is also not disputed that the deceased committed suicide soon after she returned home after having met the applicant. In which case, learned APP submits that the applicant was the last person who met the deceased before she committed suicide and as such, all the links in the chain of circumstances points towards the guilt of the applicant.
9. Learned APP submits that linking the aforesaid facts with the hundreds of Whatsapp Chats exchanged between the applicant and the deceased from 13.09.2019 till 19.09.2019, i.e., the day of the incident, would be another incriminating circumstance which would rope in the role of the applicant in the abetment of suicide of the deceased. According to learned APP, the gross, explicit and vulgar content of the verified Whatsapp Chats would also point towards the applicant having dominating and overpowering personality over the deceased, coupled with the undue pressure exercised by virtue of such dominating position by the applicant over the deceased for indulging in forcible sex against her consent, would also be an incriminating circumstance in the chain of circumstances weighing against the applicant.
10. Learned APP also submits that Ms. S who is stated to be a close friend of the deceased had not only in her statement under section 161 Cr.P.C. but also in her statement under section 164 Cr.P.C. which were recorded on 20.09.2019 and 24.09.2019 respectively, had supported and corroborated the version of the prosecution. Learned APP lays special emphasis on the aforesaid aspect to submit that Ms. S was the last one to speak with the deceased soon before she committed suicide.
11. That apart, learned counsel also refers to the Whatsapp Chats between the deceased and the applicant on 17.09.2019 at 7:59 p.m., which according to the learned APP, is damning the applicant and clearly indicates that the applicant was blackmailing the deceased for engaging in sexual relations.
12. That apart, learned APP submits that the family members of the applicant had assaulted & molested the mother of the deceased on 18.11.2019 in the court premises, the day when the applicant was released on interim bail by the learned Trial Court. He submits that this incident was also registered as a separate FIR bearing no.283/2019 u/s 323/354/506/34 IPC, 1860 at P.S. Subzi Mandi, Delhi. According to learned APP, it is clear that the family members of the applicant would go to any extent to threaten the witnesses or harm them.
13. Another link according to learned APP disentitling the applicant from release on regular bail is the fact that Ms. S, who had given a consistent statement supporting the case of prosecution both while recording statement under Section 161 & 164 Cr.P.C., turned hostile after the applicant was released on interim bail. This circumstance according to the learned APP, is against the applicant and disentitles him from seeking any indulgence from this Court. COMPLAINANT’s CONTENTIONS:-
14. Mr. Sharma, appears for the Complainant and submits at the outset that the father and uncle (chacha) of the applicant are recorded Bad Characters of the locality and have innumerable criminal cases pending against them under various heinous offences including those under provisions of Arms Act, 1959. Learned counsel submits that the father and uncle of the applicant have many unlicensed guns, rifles and automatic weapons which are generally used with impunity for threatening or assaulting public. Mr. Sharma reiterates the submissions regarding the assault and molestation of the mother of the deceased on 18.11.2019 to submit that there is clear and present danger to the very life of the mother of the deceased, being a single lady with no one else in the family.
15. Mr. Sharma submits that the issue of Ms. S turning hostile is directly linked to the release of the applicant to interim bail in as much as the original statement of Ms.S under Section 161 Cr.P.C. was in her own writing and not recorded by any police officer. He further submits that in her statement under Section 164 Cr.P.C. before the learned M.M., Ms. S had categorically stated that she is under no influence to make such statement. According to Mr. Sharma, Ms.S turning hostile is not a mere coincidence but under threat and intimidation of the applicant and/or his family members soon after the applicant’s release on interim bail.
16. Learned counsel also refers to the proceedings under Section 82 Cr.P.C. which were initiated against the applicant to secure his arrest. However, it was only after a lot of effort that the applicant was finally arrested.
17. Learned counsel takes this Court through the number of Whatsapp Chats exchanged between the deceased and the applicant as also the photographs of the applicant brandishing guns, pistols, rifles and automatic weapons for which neither the applicant nor his family members have any license. From the photographs, Mr. Sharma seeks to submit the criminal bent of mind of the applicant.
18. At the end, he submits that the unclean antecedents of the father and uncle coupled with the cache of unlicensed arms in their possession and their little regard for law and order are clear pointers to the danger that the complainant is in. If the applicant is released on bail in such circumstances, not only the administration of justice suffers but the complainant may lose her own life. The aforesaid fact is clearly a pointer to the propensity of the applicant to indulge in criminal activities and on this basis, learned counsel prays that the present bail application be dismissed.
REBUTTAL BY THE APPLICANT
19. In rebuttal to the submissions, Mr. Singh learned counsel for the applicant submits that the reliance so placed by the prosecution upon the Whatsapp chats are squarely on the basis of the surmises, conjectures and presumptions and the same at worst can only forms the part of circumstantial evidence. Learned counsel further submits that in view of no direct evidence of any nature whatsoever, the presumption of innocence of applicant cannot be belittled by such surmises and presumptions.
20. Learned counsel further submits, on the issue of the second FIR of assault registered against the family members of the applicant, that no such incident has ever occurred and the same was a deliberate attempt on the part of the complainant/mother of the deceased out of her own vendetta and revenge, to create further controversy and impediments in the proper adjudication of the case of the applicant on merits.
21. So far as the submission of the complainant regarding multiple criminal cases pending against the father and uncle of the applicant, Mr. Singh, learned counsel for the applicant submits that the same is absolutely a false submission and the same needs to be verified from the prosecution, since as per his instructions, only a few, rather 2 cases are pending against them.
ANALYSIS & CONCLUSIONS:-
22. The Court has heard extensive arguments addressed by Mr. Jatan Singh, learned counsel for the applicant, Mr. Shoaib Haider, learned APP for the State as well as Mr. R.N. Sharma for the complainant. This Court has also perused minutely the documents placed on record like the FIR, chargesheet, Postmortem Report as well as the various statements of the witnesses.
23. At the outset, keeping in view the facts in this case, this Court has perused the contents of the Nominal Roll. According to it, the applicant has already spent 3 years 2 months and 23 days as on 15.05.2023. As of today, the applicant would have been incarcerated in judicial custody for a period 3 years 6 months and 23 days (approximately). The Nominal Roll also indicates that the overall jail conduct of the applicant is ‘unsatisfactory’, though the said conduct for the last 1 year is recorded as ‘satisfactory’. That apart, during this period, the applicant has also been awarded three punishments during his incarceration on 14.12.2020, 29.12.2020 and 17.10.2021.
24. The undisputed fact arising in the present case is that the applicant and the deceased were in a relationship for the last 1.[5] to 2 years prior to the date of incident. It is also stated that the applicant and deceased were in a consensual sexual relation too, except that it is stated on behalf of the prosecution that such sexual relations were forced on the basis of blackmail by the applicant.
25. Learned counsel for the applicant had strenuously argued that though charges under Section 376 IPC, 1860 have been framed against the applicant, however, keeping in view the fact that admittedly, there were consensual sexual relations, offence under Section 376 IPC is neither made out nor is there any material evidence placed on record to show that the offence under Section 376 IPC, 1860 is made out. Learned counsel referred to the FSL Report and submitted that nothing incriminating has been revealed from such scientific analysis incriminating the applicant.
26. This Court has considered the aforesaid submissions qua the offence under Section 376 IPC, 1860 and is unable to agree with the contention of the learned counsel for the applicant. This is for the reason that the overwhelming evidence in the form of WhatsApp chats, prima facie, appear to point an incriminating finger against the applicant. That apart, the reliance of Mr. Singh upon the FSL Report revealing no incriminating factor against the applicant is concerned, the same is untenable for the reason that it is the own case of the applicant that the deceased and the applicant were in a consensual sexual relation in the past too, before the date of the incident.
27. At the same time, the prosecution as also the counsel for the complainant has vehemently and strenuously argued in favour of offence under Section 376 IPC, 1860 primarily predicating such submissions upon more than 900 WhatsApp messages alleged to have been exchanged between the applicant and the deceased on 19.09.2019, the date of the incident. According to the prosecution and the complainant, the WhatsApp chats have been verified and were retrieved from the mobile phone of the applicant.
28. The case of the prosecution is that not only were the messages sent by the applicant explicit, abusive and vulgar but the holistic reading of the same would be a clear pointer that the applicant had blackmailed the deceased not only to meet him but also had established sexual relations completely against her consent. They, thus aver that the material in the WhatsApp chats incriminate the applicant for offence of rape.
29. Though, this Court has perused the WhatsApp chats, however, does not wish to give any observation one way or the other, lest it prejudices the case of either of the parties. Having said that, however, the WhatsApp chats do indicate that the deceased did in fact meet the applicant subsequent to the messages exchanged between the parties and it was soon after the meeting that the deceased returned home and committed suicide.
30. In relation to the huge amount of videos and explicit photographs containing pornographic material retrieved from the mobile phone of the applicant is concerned, much was argued for and against the applicant. This Court is in agreement to some extent with the contention of Mr. Jatan Singh that such material may have been on the mobile phone of the applicant received by the applicant from other WhatsApp groups. In any case, this Court is not testing the said submission on the touchstone of moralities and deems it fit to leave it at that. The material which could be relevant could be the photographs and videos involving the applicant and the deceased. What is intriguing is that no such photographs or videos of the acts between the applicant and the deceased have been found on the mobile phone of the deceased. Thus, it cannot be concluded at this stage at least as to whether the said material was used by the applicant to blackmail or not the deceased. As of now, both situations are possible. However, the same may have to be juxtaposed with the WhatsApp chats exchanged between the deceased and the applicant commencing from 15.09.2019 to 19.09.2019. It is obvious that the said co-relation, if at all, would be a subject matter of the trial.
31. So far as the contention of Mr. Jatan Singh, learned counsel in regard to the PW-Ms.S turning hostile is concerned, both parties had their own versions. According to the applicant, PW- Ms.S, who is stated to be a common friend of the applicant and the deceased, had rendered her statement under Section 161 as well Section 164 Cr.P.C. under pressure, influence and threat extended by the mother of the deceased and therefore, at the time of examination in Court, the said witness rightly gave the correct version and turned hostile. In contradistinction to the aforesaid submission, both Mr. Haider, and Mr. Sharma, learned counsel for the complainant submitted that till such time the applicant was behind bars, PW- Ms.S had got recorded her statement under Section 161 before the Police and statement under Section 164 Cr.P.C. before the learned M.M. without any fear or influence. In fact, Mr. Sharma had pointed out that the statement under Section 161 Cr.P.C. was a hand written statement tendered voluntarily by PW-Ms.S followed by an unequivocal assurance to the learned M.M., while recording statement under Section 164 Cr.P.C. that she is under no pressure and is tendering her statement on her own free will. It was pointed on behalf of the prosecution as well as the complainant that the application seeking anticipatory bail of the applicant before the learned ASJ was considered and an interim protection from arrested was granted to the applicant on 18.11.2019. It was further claimed that the father and uncle of the applicant severely assaulted and molested the complainant, who is the mother of the deceased regarding which an FIR also is stated to have been registered on the same day. That apart, it is also their case that it was only after the applicant was released on interim bail, that PW- Ms.S turned hostile on 29.11.2021.
32. From the above, the allegation of the PW- Ms.S having been influenced appears to be plausible situation for the following reasons:- (a) That PW-Ms.S’ statements under Sections 161 and 164 Cr.P.C. were recorded on 20.09.2019 and 24.09.2019 respectively, whereas the applicant stated to have been granted interim protection from arrest on 18.11.2019 by the learned ASJ. It was only on 28.11.2019 that PW-Ms.S had given a written complaint to the concerned Police Station that she had given previous statements under threat, coercion and undue pressure of the complainant, who is alleged to have threatened her of implicating her in false criminal cases. The same was followed by her turning hostile on 29.11.2021. It does not appear to be a mere coincidence that PW-Ms.S gave a letter to the Police Station retracting her statement immediately within days of the applicant being granted interim protection from arrest by the learned ASJ; (b) The father and the uncle of the applicant are alleged to have brazenly assaulted and molested the mother of the deceased i.e., the complainant, on 18.11.2019, the very same day on which the applicant was released on interim bail in regard whereto, an FIR was also registered;
(c) It has been stated by the counsel for the complainant that the uncle and the father of the applicant are involved in a huge number of criminal cases under grave sections and have already been declared as ‘bad characters’ of the locality. As against this, learned counsel for the applicant had submitted that only few cases are pending.
33. Keeping in view the aforesaid circumstance, this Court cannot, at this stage, positively rule out that PW-Ms.S has not been influenced by the applicant or his family members.
34. It has been further alleged that the father and uncle have been declared as bad characters of the concerned Police Station and are stated to possess a cache of unlicensed firearms like pistol, gun, rifle and automatic and semi-automatic weapons. The apprehension of the complainant of being put to any physical harm or otherwise by the father and uncle of the applicant, cannot be ruled out.
35. Much emphasis was laid by the prosecution and the counsel for the complainant on the photographs of the applicant wielding various firearms to submit that the applicant has a propensity for criminal activities which are clearly reflected as depicted in the said photographs which also would tend to disentitle the applicant from seeking regular bail. This Court is unable to come to any concrete conclusion for or against the applicant merely based on the photographs without anything more. Moreover, there is nothing on the record of this Court as of now to show as to whom the alleged firearms belong or whether they are real or not.
36. So far as the redacted photographs showing various girls in seminude, nude condition with the applicant is concerned, the same were alleged to show the character of the applicant, as if the applicant is an immoral person and involved in sexual relationships with many women and even minor girls. These submissions may be an issue which the learned Trial Court may have to deal with. So far as this Court is concerned, the said photographs have been directed to be redacted and are eschewed from consideration at this stage.
37. It has also come on record of this Court that the applicant was previously involved in two FIRs bearing FIR No. 437/2018 under Sections 452/323/34 IPC registered with P.S.- Paschim Vihar, New Delhi and FIR No.0084/2018 under Sections 323/341/427/452/506/34 IPC registered with P.S.- Paschim Vihar, New Delhi. It has also come on record that the aforesaid two FIRs were quashed by a Co-ordinate Bench of this Court vide orders dated 07.09.2020 and 19.10.2020, respectively, on the basis of settlement having been arrived at between the applicant and other co-accused persons with the complainant in those cases. A consideration of the nature of offences alleged therein against the applicant appears to be an indicator of the nature of the applicant in that, the applicant was alleged to have committed not only house trespass but also wrongful restraint and hurt. It may be noted that those cases did not conclude any acquittal/quashing on merits but only on settlement, which may not necessarily mean that the applicant was found innocent. At this stage, this Court takes note of the aforesaid cases to also conclude that the same also do not inspire any confidence in the Court to release the applicant on bail.
38. Learned APP for the State rightly said that the case is based on circumstantial evidences and various circumstances arising need to be collated and put together to form a chain of circumstances.
39. It is trite that in such cases, the burden of the prosecution is not only to prove the circumstances against the accused person beyond all reasonable doubts, simultaneously, the prosecution is also to establish that the circumstances read together are also inconsistent with the innocence of the accused. Having said that, the prosecution is yet to prove the twin conditions of circumstantial evidence case.
40. The judgements so relied upon by the learned counsel for the applicant are concerned, the same are distinguishable on facts and as such the ratios laid therein could not be applicable to the facts of the present case. In that, in view of the above circumstances the following peculiar facts obtaining in the present case render those judgements distinguishable:i. That soon after the order granting interim protection to the applicant from arrest was passed by the learned ASJ, the star witness namely Ms.S turned hostile. ii. The day the learned ASJ passed an order granting interim protection to the applicant from arrest, the father and uncle of the applicant had allegedly assaulted and molested the complainant, i.e, the mother of the deceased, resulting in an FIR still pending adjudication. iii. That despite the present FIR, the applicant was also involved in two other FIRs alleging serious offences involving harm to property and person as also house trespass. iv. That the infliction of jail punishments for three times during his incarceration period coupled with the overall jail conduct being recorded as “Unsatisfactory”. Therefore, the judgements, so relied upon by the learned counsel for the applicant does not come to rescue of the applicant as far as the present case is concerned.
41. Though, all the primary/public witnesses in the present case have indeed been examined, cross-examined and discharged yet, the aforesaid peculiar circumstances arising in the above case, do not inspire any confidence in this Court of the applicant not misusing the bail, if granted. No doubt that the applicant has been incarcerated for a period of approximately a little more than 3 years and 6 months, that alone in the peculiar facts arising in the present case, more so, in view of the alleged criminal antecedents of the father and uncle of the applicant including the applicant himself, also do not inspire any confidence in respect of enlarging the applicant on bail.
42. In view of the above, this Court does not find any merit, hence, the present bail application stands dismissed.
43. Nothing in this order shall be considered as an expression of opinion on the merits of the pending matter, and it is made clear that the learned Trial Court shall eschew any observation made herein at the time of adjudication of the present case on merits.
TUSHAR RAO GEDELA, J. SEPTEMBER 19, 2023 lr/nd