Sanjay Mahalwal v. State of NCT of Delhi

1. Allowed, subject to all just exceptions.

2. Application is disposed of.

3. Vide the present petition, the petitioner/ accused seeks bail in case FIR No. 1213/2015 registered at Police Station – Saket for the offences punishable under Sections 363/376D/34 IPC read with Section 6 of POCSO Act, 2002. 2020:DHC:79

4. Learned counsel appearing on behalf of the petitioner submits that the petitioner/ accused No. 2 was neither named in the FIR nor in the statement of the prosecutrix recorded under Section 161 Cr.P.C. Moreover, the version of the Prosecution has been denied by both the prosecutrix and the complainant (Mother of the prosecutrix) in their statements recorded under Section 161 and 164 Cr.P.C. before the Ld. Magistrate and stated that the deposition made against the accused persons was made due to threats and pressure exerted upon the prosecutrix and complainant by the Police officials.

5. Moreover, the prosecutrix failed to identify the petitioner in her deposition before the Trial Court made in the morning session on 08.10.2016, however, post-lunch upon apparent tutoring, was able to identify the petitioner.

6. Learned counsel further submits that the petitioner has been unduly framed in the present FIR at the hands of the Police officials on the refusal of the petitioner to meet with the extortion demands of the said officials, for the purposes of which the officials illegally confined the petitioner in the Police Station on 28.09.2015 and forged the date of arrest in the arrest memo as 29.09.2015.

7. The petitioner has previously preferred 6 applications praying for regular bail under Section 439 Cr.P.C. before the Ld. Sessions Court, but the same have been of no avail and the petitioner has been languishing in judicial custody since nearly 4 years, with short period of interim bails granted.

8. The case of the prosecution is that the prosecutrix, who had left her house at 7 PM on 28.09.2015 on the pretext of going to her friend’s house to collect books, had neither reached the friend’s house nor came back to her home since then. The mother of the prosecutrix (complainant) while giving the description of the prosecutrix put forth her apprehension that some person may have coaxed the prosecutrix and taken her along.

9. Pursuant to the statement of the complainant, FIR No1213/2015 u/s 363 IPC was registered and the investigation by the Police was set in motion.

10. On 28.09.2015 at 5.30-6.00 AM, as per the events alleged by the prosecution, the prosecutrix returned to her house and was taken to P.S. Saket where she allegedly deposed in her statement under Section 161 Cr.P.C. that on 27.09.2015 around 7 pm, Sanjay Kumar @ Sanju (coaccused) with his unidentified friends forcibly nabbed the prosecutrix from new Hanuman Mandir and took the prosecutrix first to Chirag Delhi Park where the prosecutrix was assaulted and sexually harassed and then taken to a terrace of a building in Madangir Village where she was sexually assaulted by co-accused Sanjay @Sanju & one more person, thereby leading to the enlargement of scope of alleged charges under Section 376-D IPC read with Section 6 of POCSO Act against the accused persons. Learned counsel further submits that the prosecutrix in her statement under Section 161 Cr.P.C. named the accused No.1 - Sanjay Kumar@ Sanju with unidentified persons and again no mention of the petitioner /accused no.2 was made therein on the account of the prosecutrix.

11. On 28.09.2015, between 2.30 PM-4.30PM, the MLC (Sexual Assault) bearing no. 13115/2015 was conducted upon the prosecutrix at AIIMS, New Delhi. It is imperative to note that while in the above statement of the prosecutrix under Section 161 Cr.P.C., there is no mention of names apart from co-accused Sanjay @ Sanju, in the narration of the incident to the examining doctor in AIIMS, however, just hours after the statement under Section 161 Cr.P.C., the prosecutrix interestingly named 2 more persons apart from Accused No.1 Sanjay @Sanju, namely Aryan and Nandi and the identity of the alleged 4th person involved was again unnamed. Furthermore, as per the narration of the prosecutrix, it is only accused No.1 Sanjay @ Sanju who is alleged to have performed forceful sexual intercourse with the prosecutrix.

12. Furthermore, the MLC form clearly' states that as per the version of the prosecutrix, verbal threats, physical violence, weapons or objects used to threaten the prosecutrix and condom were absent. Moreover, it is noteworthy that there were no injury marks inflicted upon the prosecutrix by the assailant.

13. Learned counsel submits that on 29.09.2015 at 11 AM, the petitioner/accused No.2 was shown to be arrested in connection with FIR No. 1213/2015 by P.S. Saket, however, the petitioner was illegally confined in the Police Custody since 28.09.2015. The entire chain of events leading up to the arrest of the petitioner have purely been fabricated by the Police officials. There is no independent witness to the arrest of the petitioner validating the narration of events as mentioned by the Police officials leading up to his arrest.

14. Moreover, on 08.10.2016 the prosecutrix in her statement under Section 164 Cr.P.C., in her examination-in-chief denied the entire story of the prosecution of allegations of alleged rape and kidnapping. Furthermore, prosecutrix was able to identify accused No.1 but not to petitioner/accused No.2. Furthermore, upon cross-examination the prosecutrix deposed that the Police officials threatened her into deposing against the accused persons.

15. On the other hand, learned APP appearing on behalf of the State submits that the trial is at the fag end of its completion, where material witnesses have been examined and only formal witnesses are left to be examined. The petitioner earlier moved three bail applications before this Court in the year 2017 but were dismissed. Thereafter, Bail Appln. NO. 2444/2019 was filed and the same was dismissed as withdrawn on 26.09.2019. Thus, there is no change of circumstances since then, therefore, the present petition deserves to be dismissed. Even as per the FSL report, the petitioner is connected with the alleged sexual intercourse with prosecutrix.