Full Text
HIGH COURT OF DELHI
JUDGMENT
SAFDAR ALI ..... Applicant
Advocates who appeared in this case:
For the Applicant : Mr. Pradeep Kumar & Mr. Sumeet Kumar, Advs.
For the Respondent : Ms. Priyanka Dalal, APP for State
SI Anita Poonia, PS Ranhela Ms. Gayatri Nandwani, Adv., DHCLSC for
Prosecutrix with Prosecutrix in person
1. The present application is filed under section 439 of CrPC seeking regular bail in FIR No. 320/2022 dated 13.03.2022 under section 376/506/201/354-C/384 of IPC at P.S Ranhola.
2. The applicant earlier had preferred a regular bail application before the learned Trial Court, which was dismissed by the order dated 23.07.2022, on the ground that the applicant had tried to mislead the court by stating that it was his second bail application, whereas it was third. The learned Trial Court while dismissing the bail application relied upon the judgement of this Court in Shiv Lingam V. State & Anr in Crl. M.C. 2885/2022, Crl. M.A. 12026/2022, wherein it was held that if the record of earlier bail applications is concealed by the applicant, then inevitably the judicial officer concerned may remain under impression that no bail application had been considered earlier by any court. In the aforesaid terms fraud vitiates all proceedings and the consideration of the bail application, would be no exception.
3. Before dismissal of the above bail application applicant had filed one bail application which was dismissed on 28.04.2022 on the ground that allegations are serious in nature and chargesheet is yet to be filed and one application was withdrawn on 07.06.2022 with liberty to file afresh.
4. It is alleged that in the month of May, 2021, the complainant / prosecutrix came in contact with the applicant through Facebook. Applicant introduced himself as a doctor working with all India Institute of Medical Sciences.
5. It is claimed that the complainant talked with the applicant in relation to the removal of scar by surgery in her abdomen. She met applicant for the first time in July, 2021 and from August, 2021, he started visiting her residence. The applicant stated to have also become friendly with the family members of the complainant. It is alleged that it was on some date after 20th August, 2021, the applicant came to the complainant’s residence and on some pretext, spent the night at her house and slept along with her younger brother in a separate room. It is alleged that on the said night, the applicant came to the complainant’s room at about 12:00-12:15 night when he closed her mouth with his hand and committed rape. The applicant then showed the complainant a video on his mobile which was prepared by him during the time he committed rape. It is further alleged that up till 30th November, 2021, the applicant used to regularly meet the complainant and used to commit rape. She did not tell anyone due to the fear of the alleged video being viraled. The applicant also took a sum of Rs.1,20,000/- during that period by blackmailing her. It is further alleged that the family of the applicant on being informed by the complainant about the offence being committed by the applicant, threatened the complainant of dire consequences.
6. Learned Counsel for the applicant submits that he is in judicial custody since 14.03.2022. The investigation is complete and chargesheet has already been filed and the case is pending for trial before learned Additional Sessions Judge-01, Tis Hazari.
7. He states that the applicant is innocent and has been falsely implicated in the present case. It is stated that the applicant and the prosecutrix were having friendly/family relations with each other for the last 1.[5] years. Further, he submits that alleged offence took place during the period August 2021 to November 2021. The FIR, however, has been registered belatedly on 13.03.2022 after a delay of about four months.
8. He further submits that prosecutrix and applicant have been in deep love relationship and were intending to marry each other. In fact, the family of prosecutrix had taken a personal loan of ₹2,00,000/from applicant by luring him and when applicant demanded the money back, they conspired to usurp and grab the hard-earned money of applicant.
9. Learned APP for the State and learned counsel for the prosecutrix opposes the grant of bail to the applicant.
10. Learned APP submits that that there are serious and specific allegations against the applicant and offence committed is of grave nature.
11. She further states that the Prosecutrix in her 164 Cr.P.C. statement has supported the case of prosecution and her statement corroborates the complaint.
12. She states that the Chargesheet in the present case is filed and there are chances that if the accused is enlarged on bail he might try to tamper with the evidence and might try to threaten the witnesses.
13. It is also alleged that the applicant’s father had threatened the complainant. Reasoning
14. In the present case, the investigation is complete and chargesheet has also been filed. The statement of the prosecutrix is also stated to have been recorded by the learned Trial Court.
15. It is not in dispute that the applicant and the complainant had known each other since July, 2021. It is also not disputed that the applicant was in good friendly terms with the entire family of the complainant for a considerable period of time before the alleged incident of rape. First incident of the alleged rape had allegedly taken place in the house of the complainant. The allegation made is that while staying at the complainant’s house, accused had entered her room and committed rape.
16. The applicant was admittedly permitted by the complainant and her family to stay in their house. The house, where it is alleged that the incident of rape happened, is stated to be not a big building. Whether such offence could have been committed while the family members were also present in the same premises and did not come to know about the alleged act, would be a matter of trial.
17. It is further alleged that while the applicant was committing the act of forceful sexual intercourse, also made a video. The mobile phone on which the alleged video was recorded has not been found. It is though claimed that the applicant during the custody, in his disclosure has stated that he has destroyed the said phone.
18. The evidentiary value of the statement given by an accused while in custody is well settled. The statement given by the applicant while in custody which has not led to any recovery, would be the subject matter of trial and cannot be presumed to be true at this stage.
19. The applicant has annexed with the present application, his photographs taken alongwith the prosecutrix which at this stage show that the applicant was in good intimate relations with the prosecutrix. The said photographs have not been denied by the prosecution.
20. It is not in dispute that to hold a person guilty for commission of offence of rape, even on the sole testimony of the prosecutrix is sufficient, provided the same inspires confidence and is found to be absolutely trustworthy.
21. Considering the nature of evidence and the accusations, the testimony of the prosecutrix at this stage does not appear to be totally trustworthy. The same would be tested during the course of trial.
22. On a specific query being put to the complainant, who was present in the Court, with regard to the allegations that the applicant’s father had threatened the complainant’s friend via a Whatsapp call, the complainant replied that no such complaint was given to the learned Metropolitan Magistrate and in fact, stated that said threat was made face to face and after few minutes, changed her statement and said that the threat was made on a Whatsapp call. She further stated that she does not want to take any legal action with regard to the threats being made.
23. It is not in dispute that the offence as alleged is heinous in nature, however, it cannot be lost sight of the fact that the object of jail is not punitive but to secure the presence of the accused during the trial.
24. The applicant is stated to be a young man of 25 years of age. He is in custody since14.03.2022. The trial is likely to take long period before it reaches any finality.
25. Without commenting further on the merits of the case and keeping in mind the facts and circumstances as mentioned above, I am satisfied that no purpose would be served by keeping the applicant in further incarceration.
26. The applicant is, therefore, directed to be released on bail on furnishing a bail bond for a sum of ₹50,000 with two sureties of the like amount to the satisfaction of the learned Trial Court/ Duty Metropolitan Magistrate, subject to the following terms and conditions: i) The applicant shall provide his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times; ii) The applicant shall not take unwarranted adjournment and attend the Trial Court proceedings on every date; iii) The applicant shall not leave the city without informing the concerned IO / SHO; iv) The applicant shall not in any manner contact the complainant or any of the witnesses; v) The applicant shall not in any manner tamper with the evidence; vi) The applicant shall not leave the country without permission of the learned Trial Court.
27. In the event of there being any FIR / complaint lodged against the applicant or the applicant is found to have violated the conditions stated above, the State is at liberty to file an appropriate application seeking cancellation of bail.
28. The present application is allowed in the aforesaid terms.
29. It is, however, made clear that any observation made in the present order are only for the purpose of deciding the present 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. AMIT MAHAJAN, J JANUARY 18, 2023 “SK”