Afroz v. State

1. Allowed,subjectto alljust exceptions.

2. Applications stand disposed of. BAIL APPLN.1526/2019 & BAIL APPLN.1530/2019

1. The Bail Application 1526/2019 has been filed on behalf of Afroz under Section 439 Cr.PC seeking regular bail in FIR No.75/2019,registered BAIL APPLN. 1526/2019& connected matter page 1 of[5] 2019:DHC:7319 > under Sections 376D/506 IPG and Section 6 ofPOCSO Act, Police Station Paharganj, while the Bail Application 1530/2019 has been filed on behalfof Jakir@Kalwa seeking anticipatory bail in the same FIR.

2. Since arguments in both the bail applications have been heard together, they are being disposed ofby a common order.

3. Mr.Rajiv Khosla,leamed counsel for the petitioners while arguing for Afroz submits that Afroz is in custody since 25.03.2019; he has been falsely implicated in the present case;he and the prosecutrix were notknown to each other. He reiterates that at no point oftime Afroz ever met the prosecuterix. Hefurther submits that as per the allegations made in the FIR,the prosecutrix statedthatthefirstincidentofrape occurred in September,2018 andthereafter on 28.02.2019,however,the FIR was registered only on 16.03.2019,the FIR is silent aboutthetime as wellas details orthe place wherethe alleged incident took place; as per the call details record(CDR)filed along with the chargesheet, the location of Afroz and the prosecutrix are at different places on 28.02.2019;the prosecutrix has refused her internal medical examination and the prosecutrix could not identify the hotel in Paharganj. He further submits that along with the charge-sheet, the police had filed three unsigned letters recovered from the bag ofthe prosecutrix, out of which two letters neither mention about the first incident ofPaharganj nor do they mention the name ofJakir@Kalwa.He also submits thatthere are contradictions in the various statements ofthe prosecutrix. It has also been argued that on 27/28.02.2019, Afi'oz was on leave attending the walima ceremony, which fact stands verified. BAIL APPLN. 1526/2019& connected matter page2of[5]

4. Per contra, Ms.Kusum Dhalla, learned AFP for the State has vehemently opposed the bail application. She has invited the attention ofthe Court to the order dated 03.06.2019 passed by the Coordinate Bench ofthis Court wherein the earlier bail application filed on behalf of Afroz was withdrawn on account ofthe factthat the charge-sheet has been filed and the matter was fixed before the Trial Court on 27.07.2019 for consideration on the point ofcharge. On merits,she has stated that even in all the three afore mentioned letters as well as in the statements recorded during the investigation,the prosecutrix has consistentlystated abouttheincidentofrape committed upon her by Afroz. The prosecutrix also mentioned the name of Jakir@Kalwa in one ofthe letters and in her statements recorded during the investigation.

5. I have gone through the bail application as well as the case file produced by the 10.

6. As perthe status report,the prosecutrix's date ofbirth has been verified from the school records,as per which her date ofbirth is 15.09.2001.She was a minor,aged about 17 years and astudentof10'^ class when thefirstincident ofrape took place in September,2018.As per the FIR as well as statement of the prosecutrix recorded under Section 164 Cr.PC, when the prosecutrix initially met Afroz, he provided her with his phone number. In September, 2018,Afroz called the prosecutrix and took her to a hotel in Paharganj where he committed rape upon the prosecutrix against her will. Thereafter, on 28.02.2019,she was called by Afrozto Noida,Sector-62 where after drinking the water given by him,she fell unconscious and when she regained her BAIL APPLN. 1526/2019& connected matter page 3of[5] consciousness,she found herselfin a room without any clothes on her body. She was told by Afroz and Jakir @ Kalwa that both of them have made physicalrelations with her and also showed her videoin whichshe wasshown without any clothes. Both the petitioners committed rape upon her and also gave her life threats. In all of her statements, the prosecutrix is consistent about the incident ofrape committed upon her by Afroz.In one ofthe letters as well as in the statement recorded during the course ofinvestigation,she is consistent aboutthe role ofJakir@Kalwa.

7. The whole premise ofthe argument advanced by the learned counsel for the petitioner was that Afroz was never known to the prosecutrix.He has reiterated during his submissions that Afroz never met the prosecutrix. However, as per the status report, during the investigation the CDR details were collected and analysed, which show that eight calls were made by the prosecutrix from her phone to the petitioner's phone from 05.02.2019 to 09.02.2019. These calls were not made in one day but were rather ofvarious, durations and spread over a period offive days, thus raising an inference, althoughprimafacie,thatthe petitioner was known to the prosecutrix.

8. So far as Jakir @ Kalwa is concerned, although there are no calls exchanged between the prosecutrix and him, however, the prosecutrix has consistently taken his name along with Afroz in regard to second incident of rape. Jakir @ Kalwa has notjoined the investigation till date and when the first charge-sheet filed, it was mentioned that since Jakir is not traceable, supplementary charge-sheet against him,will be filed later.

9. In the totality ofthe facts and circumstances ofthe case and especially BAIL APPLN.1526/2019& connected matter page 4of[5] mviewofthefactthattheprosccutrix.aminor,is yettobeexaminedin the ourt.thisCourt,snotinclined to entertainthepresentbailapplications,at thisstage,andthesame areaccordinglydismissed.

10. Needlesstosaythattheaboveconelusionsarebasedonlyontheprima acie view ofthe matter and the same be not treated as an expression of opinion on the merits ofthe case.