Pankaj Saini v. State NCT of Delhi & Anr.

1. The petitioner has filed this application seeking regular bail in FIR No.52/2019 under Section 376/363/365 IPC and Section 6 of the POCSO Act registered at PS Fatehpur Beri. 1.[1] The petitioner is stated to be in judicial custody since 07.02.2019. Earlier, a bail application was moved in which notice was issued for 28.07.2022. The said bail application was dismissed as withdrawn on 01.06.2022 with liberty to file a fresh bail application before the learned Trial Court. 1.[2] A bail application was accordingly moved, which was dismissed by the learned Trial Court on 14.07.2022; hence, the present bail application has been moved. The evidence of the victim/prosecutrix and her father has been already recorded on 21.05.2022.

2. As per the petitioner, the case of the prosecution is that a complaint was lodged by the father of the victim on 04.02.2019 regarding missing of his daughter. This complaint was registered under Section 363 IPC and investigation was conducted. The missing girl was recovered from Rajasthan. The statement of the victim/prosecutrix was recorded in the presence of her mother, and thereafter, Section 365/376 IPC and Section 6 of the POCSO Act were added. 2.[1] The medical examination of the victim was conducted on 07.02.2019, in which it was observed that there was no significant past history. Thereafter, statement of the prosecutrix was recorded under Section 164 Cr.P.C., in which she disclosed that she met the accused/petitioner 6 years ago. After few months, in the year 2014, the accused/petitioner went to the victim’s house, when there was nobody else except her, where the petitioner forcibly tried to indulge in physical relations with her and had also abused her verbally and physically. It continued for a few years and on 04.02.2019, the petitioner asked the prosecutrix to bunk the school and to come along with him. They roamed around in Gurugram and when she asked him to drop her back, he refused to do so. 2.[2] Both of them stayed in Gurugram and spent the night in a tempo van where the petitioner again tried forcefully to indulge with her in physical relations. Thereafter, they went to Jaipur and from there to Jhunjunu and then to Siker and from Siker, they went to Navalgarh. The relatives of the petitioner came at the restaurant, where they were having dinner at Navalgarh and they were taken to the police station.

3. Charge sheet dated 12.03.2019 was filed. There are 13 witnesses, out of which the prosecutrix and her father have been examined. The bail has been prayed on the ground that there is no concrete case against the petitioner, who has been falsely implicated in the case at the instance of the father of the prosecutrix. The accused/petitioner and prosecutrix were known to each other for the last 6-7 years and the prosecutrix was in love with him and his parents were aware about the same, however, because the prosecutrix was from a different caste and they being neighbours, the petitioner was married off to another girl by his parents. 3.[1] The petitioner had never forced the victim to engage in physical relationship with him. Even after the marriage of the petitioner, the prosecutrix tried to stay in touch with him. The petitioner is a happily married person and he has a daughter. 3.[2] On 04.02.2019, the prosecutrix asked the petitioner to elope with her. In Court, she deposed that it was in her knowledge that the petitioner was married and they had physical relation with each other even after his marriage. 3.[3] The prosecutrix was studying in 12th Standard and she was aware of her home address, so she has falsely said that she could not have come back alone from Gurugram to her home. The prosecutrix on her own will and consent stayed with the petitioner. It is nowhere mentioned by the prosecutrix that the petitioner had forced her to have physical relation with him on 04.02.2019. It was a consensual act. 3.[4] The prosecutrix is an unreliable witness. Whether she was of 12 years of age at the time when she met the accused/petitioner or she was of 13 years of age, there is contradiction regarding her age. There are also material contradictions in her remaining statement. The prosecutrix on her own had gone with the petitioner and has met his friends and relatives. She used to write love letters to the accused/petitioner. It was the relatives of the accused who traced them and brought them before the police and it was a simple case of running away of a loving couple. 3.[5] No relevant age proof has been placed on record by the parents of the prosecutrix. After much persuasion, the school has given the school leaving certificate showing the date of birth of the prosecutrix as 03.08.2001, so, on 04.02.2019, she was aged about 17 years and 6 months. Reliance has been placed on the following judgements: (i) ‘Anant Janardhan Sunatkari v. State of Maharashtra, (2021) SCC Online Bom. 136’ (ii) ‘Jayantibhai Babulbhai Alani v. State of Gujarat, (2018) SCC Online Guj. 1223’ (iii) ‘Vinod Kumar v. State of Kerala, 2014 (5) SCC 678’ (iv) ‘Garvit Indora v. State NCT of Delhi’

4. It has been further submitted that an application was moved on 27.08.2019 for ossification test of the prosecutrix and the same is pending before the learned Trial Court. There is no basis to prove that the petitioner was born on 03.08.2001. The petitioner and the prosecutrix were in relationship for years. The allegations against the petitioner are fake. He is no longer required for custodial interrogation as the charge sheet has been already filed. There is no possibility of the petitioner absconding and not facing the trial.

5. Notice was issued. Status Report has been filed mentioning that after recovery of the missing girl, she was medically examined and the following was noticed in the MLC as history: “17.5-year-old Mrs. A give history of being sexually assaulted by Mr. Pankaj a 29 years male old resident of Aya Nagar, who has been her neighbor since past 10 years. First incident of sexual assault occurred in 2013 at her home in Aya Nagar with her consent. Later on, the victim continued to have sexual relationship for around 4 years with the accused. He had pledged for marriage once on 22-01-2019, the victim was taken to a home owned by the accused in Aya Nagar and was sexually assaulted at around 12:30pm, by the accused against her consent. On 04-02-2019 the victim was asked by the accused to accompany and was taken to Gurugram. She was sexually assaulted by the accused on 04/02/2019 at 10:00 pm in a tempo van at Gurugram. Then they went to Jaipur and roomed in Sikar and were caught by Mr. Dheeraj a cousin of accused and taken to Nawalgarh Police Station.” 5.[1] It is further mentioned in the Status Report that in her statement dated 08.02.2019, the victim had stated that the accused made physical relation with her since 2014, when she was 12 years old and the accused also hit her.

6. The bail has been opposed on the ground that the petitioner is involved in a heinous case of rape; the accused is a married man having one baby girl and despite that he lured the victim; the minor victim has corroborated her version in her statement under Section 164 Cr.P.C.; the petitioner is a neighbour of the victim and if bail is granted to him, he may threaten and influence the prosecution witnesses and his earlier bail application was dismissed by the learned Trial Court. Copy of the said dismissal order has been placed on record. 6.[1] The nominal roll of the petitioner has been called which shows that on 15.09.2022 he has completed about 3 years and 7 months in custody.

7. Certain judgements have been relied upon by the learned counsel for the petitioner: 7.[1] Bail Application No.2380/2021, titled as ‘Praduman v. State (Govt. of NCT of Delhi) and Another 2021 SCC OnLine Del 4620’. In the said case, the complainant was a student of 12th Standard aged about 16 years when the incident took place. In the present case, at the time of initial incident, the prosecutrix is stated to be a young child aged about 12-13 years, so the ratio of this judgement is not applicable to the facts of this case. Moreover, the petitioner at the time of incident in ‘Praduman v. State (Govt. of NCT of Delhi) and Another’ was aged about 19 years. That is not the case here. Here, the petitioner is a mature person, who knew the consequences of his acts. 7.[2] The next judgement relied upon by the learned counsel for the petitioner is Criminal Appeal No.821/2014, titled as ‘Vinod Kumar v. State of Kerala (2014) 5 SCC 678’. In the said case, the prosecutrix had accompanied the petitioner on earlier occasions also. In the present case, there is no such averment that the prosecutrix earlier had gone out with the present petitioner. Moreover, the prosecutrix was 20 years old at the time of the incident in ‘Vinod Kumar v. State of Kerala’. In the present case, at the time of the first incidence of forceable rape, the prosecutrix was only aged about 12-13 years. 7.[3] The third judgement relied upon by the learned counsel for the petitioner is Crl.A. No.1553/2014, titled as ‘Garvit Indora v. State NCT of Delhi 2015 SCC OnLine Del 9673’. It is the case where the appellant had challenged his conviction under Section 376/420 IPC, as he had conducted second marriage with the prosecutrix. That is not the case in the present matter, hence, the ratio of the said judgement is not applicable to the facts of this case. 7.[4] Learned counsel for the petitioner has relied upon a judgement of the Hon’ble Supreme Court in the matter of ‘Birad Mal Singhvi v. Anand Purohit 1988 (Supp) SCC 604’. The said matter is regarding the age of eligibility in an election and the order of the Returning Officer was under challenge. Admittedly, the present matter is not a case of any electoral battle, hence, the ratio of the said judgement is not applicable to the facts of the said case. 7.[5] Another case relied upon by the learned counsel for the petitioner is Bail Application No.1926/2022, titled ‘Hanzla Iqbal v. The State & Anr.’ decided by HMJ Jasmeet Singh on 24.08.2022. In the said case, the prosecutrix had three different dates of birth, however, it is not a case here where the documentary proof is regarding only one date of birth and the petitioner is challenging the said date of birth. Even if a variation of few months is presumed as pleaded by petitioner, the prosecutrix still remains a minor child when the petitioner had made physical relations with her in the year 1994.

8. Arguments were heard on 21.09.2022 in the presence of the complainant. My considered view is as under:

(i) The petitioner is a married man having a young daughter. Prima facie the allegation is that he has lured the prosecutrix who was aged about 17 years and 6 months on the date of the incident on 04.02.2019 and took her away and she was recovered from Rajasthan and brought to Delhi on 07.02.2019.

(ii) In her initial statement made before the doctor at the time of conducting the medical examination, the prosecutrix had stated that first incident of sexual assault by the petitioner occurred in the year 2013, meaning thereby that at that time, she was 12-13 years old only and the petitioner was a fully grown person aged about 22 years in 1994 and there was an age gap of about 10 years. The prosecutrix might not have understood the implications of the alleged act due to her tender age but the petitioner was fully knowing the consequences of his acts. In 2014, when it is alleged that the petitioner had made physical relations with the prosecutrix for the first time, her age still remains about 13 years or so.

(iii) The petitioner has tried to put blame on the prosecutrix that it was she who had forced him to elope. As mentioned earlier, the petitioner is a fully grown male, being duly and happily married as claimed by him and he has a wife and a daughter to look after. It was for him to take a call whether at the alleged allurement of the prosecutrix he should have left his home or not. This submission on behalf of the petitioner is not believable at this stage.

(iv) Prima facie, there is nothing on record to show that the allegations levelled against the petitioner are false or fabricated. He is alleged to have committed sexual rape on a young child aged about 12-13 years. He will get a chance to prove his innocence during trial. The prosecutrix has more or less supported her earlier statement recorded under Section 164 Cr.P.C. while deposing in Court. Minor discrepancies here or there are not material at this stage.

9. Under these circumstances, I am not inclined to grant bail to the petitioner. The bail application is accordingly dismissed.