Mukesh vs State
2013 Latest Caselaw 5612 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       DATE OF DECISION: 03rd DECEMBER, 2013

+                      BAIL APPLN. 1420/2013

        MUKESH                                            .... Petitioner
                           Through      Mr. Faisal Naseem, Advocate

                           versus

        STATE                                              ..... Respondent
                           Through      Ms. Aashaa Tiwari, APP for the
                                        State, with SI Sushma Saxena, P.S
                                        Sunlight Colony.

        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA

                           JUDGMENT

: SUNITA GUPTA, J.

1. This is an application u/s 439 Cr.P.C moved by the petitioner for

regular bail in case FIR No. 406/2012 u/s 376/328 IPC, P.S. Sun Light

Colony.

2. It is the case of prosecution that petitioner was the neighbour of the

prosecutrix and was known to her for the past two years. They used to

visit each other. It is alleged that the petitioner had called the prosecutrix

to his house for curing her stomach pain; prosecutrix went to his house and

was told that there was a stone in her stomach. He asked her to lie down

and said that he knew how to remove the stone from her stomach. Then he

blindfolded the prosecutrix and gave her something to drink; she drank the

same, after which she was not aware of what happened to her.

3. I have heard Mr. Faisal Naseem, learned counsel for the petitioner

and Ms. Aashaa Tiwari, learned APP for the State.

4. It is submitted by learned counsel for the petitioner that the

allegations in the FIR are absolutely false and baseless. It was submitted

that there are contradictions in her statement u/s 161 Cr.P.C and 164

Cr.P.C; there is considerable delay in lodging the FIR. It is inconceivable

that a lady having pregnancy with five months foetus is unaware of the

same till the time of its delivery. In her initial statement, she had stated

that when the petitioner gave her the medicine, she became unconscious

and did not know what happened to her. It is only at the fag end of her

complaint that she alleges that she became pregnant due to rape committed

by the petitioner. Prima facie there is nothing on record to prove that the

foetus belonged to the petitioner. No medical proof including DNA is

there on record. The material witnesses have already been examined;

petitioner is not a previous convict and is having roots in the society;

there is no likelihood of his absconding or fleeing from justice or

tampering with prosecution evidence, as such, he be released on bail.

There is considerable delay in lodging the FIR and the allegations are

vague. It is not disclosed as to when for the first time, petitioner gave her

something to drink on the pretext of giving medicine and moreover in the

FIR there is no allegation that it was repeated in future, which the

prosecutrix has tried to depose in her deposition. Furthermore, at least at

the time of delivery on 21.09.2012, the prosecutrix and her father came to

know about the pregnancy, yet the FIR was registered on 09.12.2012 i.e 18

days thereafter, without explaining the reasons for such delay.

5. Reliance was placed on Vijayan v. State of Kerala, (2009) 3

SCC(Crl.) 585 and Ashu Kumar V. State, 2009(2) JCC 1445 where there

was delay in lodging the complaint for seven months. The case was based

on the sole testimony of the prosecutrix. No DNA test was conducted to

find out whether the child was born out of the incident of rape and whether

the accused was responsible for fathering the child. Due to lack of any

other evidence, the accused was acquitted.

6. On the other hand, it was submitted by learned APP for the State

that although discrepancies are sought to be pointed out by counsel for the

petitioner in her statement u/s 161 Cr.P.C and 164 Cr.P.C but the

prosecutrix was never confronted with the same.

7. While considering the application for grant of bail, the Court is

required to consider the nature and gravity of the offence; the possibility of

the accused fleeing from justice, the possibility of accused tampering with

evidence and influencing the witnesses. No doubt the allegations against

the petitioner are grave and serious in nature. However, at this stage it is

not appropriate for the Court to evaluate the evidence. The prosecutrix and

the material witnesses have been examined, as such, there is no possibility

of the petitioner influencing the witnesses. The petitioner is a permanent

resident of Delhi and nothing has been brought on record to show that

there is possibility of his fleeing from justice. He is in custody since

10.10.2012

8. Keeping in view the totality of the facts and circumstances, he is

ordered to be released on bail subject to:-

(i) his furnishing personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the concerned Court;

(ii) he shall not leave the NCT of Delhi without the prior permission of the Court concerned;

(iii) he shall not contact, coerce or intimidate the complainant or her family members, nor will tamper with evidence.

The application is accordingly disposed of.

A copy of this order be given Dasti under the signature of the Court

Master.

SUNITA GUPTA (JUDGE) DECEMBER 03, 2013 as