Delhi High Court
Vipin vs State on 12 October, 2017
$~14 -15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on : 13th September, 2017
Judgement pronounced on : 12th October, 2017
+ BAIL APPLN. 806/2017
VIPIN .....Petitioner
Through: Mr. Sachin Puri, Senior Advocate with
Mr.Varun Tyagi, Mr. Bharat Gupta and
Ms. Tamanna, Advocates.
Versus
STATE .....Respondent
Through: Ms. Anita Abraham, APP for the State
with SI Arvind Kumar, Police Station
Sabzi Mandi, Delhi.
+ BAIL APPLN.1459/2017
MANOJ @ TINKY .....Petitioner
Through: Mr. Abhay Kumar with Mr. Surender
Gupta, Advoctae.
Versus
STATE .....Respondent
Through: Ms. Anita Abraham, APP for the State
with SI Arvind Kumar, P.S. Sabzi Mandi,
Delhi
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By this common order, I shall dispose of the petitions filed under
Section 439 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.'), whereby the petitioners seek grant of
Regular Bail in FIR No. 167/2015 under Section 376D of the
Indian Penal Code, 1860 (hereinafter referred to as 'IPC') registered
at Police Station Sabzi Mandi, New Delhi.
2. The case of the prosecution is that on 29.03.2015 at about 12:00
a.m., accused Vipin, a friend of the complainant, called her at his
Dhaba and when she reached, she found that accused Vipin and
co-accused/[email protected] were having liquor in their Accent Car
No. DL 5CB 5691. The complainant alleged that both accused
persons made her consume beer and while she was under the
influence of beer, they made her sit in the car and took her to
Rajpura Gur Mandi; that they made her drink whisky fraudulently
and while she was intoxicated, the accused persons committed rape
on her; that when she regained consciousness, a scuffle took place
between her and the accused persons during which her bangles fell
in their car; that thereafter accused persons fled away as she raised
alarm; that then she went to the house of accused [email protected]
and enquired about the accused persons but did not find them there;
that thereafter she returned to her house and slept; that in the
evening of 30.05.2015, she went to the dhaba of accused Vipin and
made a PCR call whereafter both the accused persons were
subsequently arrested.
3. Mr. Sachin Puri, learned Senior Counsel for the petitioner/Vipin
contended that the subject FIR is nothing but a tool manufactured
by the prosecutrix to implicate the accused persons in a false case
in order to extort money from them; that the prosecutrix is habitual
of filing false complaints as there is another FIR No. 192/2014
under Section 376G IPC registered at P.S. Ranjit Nagar, Delhi on
her complaint wherein the allegation are identical to those made in
the subject FIR; that to disprove the version of the prosecutrix, a
CD containing the conversations between prosecutrix and the
mother of the accused, wherein the prosecutrix was demanding
money, has been placed on record; that the said CD was found
genuine upon FSL examination; that, anticipatory bail was granted
to both the accused persons by the Trial Court vide order dated.
23.11.2016; that the conduct of the prosecutrix of not approaching
the police soon after the incident does not inspire confidence and
moreover her visiting to Tihar Jail to meet petitioner/Vipin on three
occasions i.e. 28.05.2015, 10.09.2015 and 17.09.2015 for settling
the case subject to fulfillment of her demands, casts serious doubt
on genuineness of her allegations; that there are several
contradictions in the statements of the prosecutrix at different
places and before different authorities with respect to the fact that
whether she was conscious or not, how much alcohol she
consumed, her address, how she raised the alarm, how she
managed to escape etc.; that neither blood stains nor semen stains
could be detected on any of the articles from the vehicle; that there
is no injury on the person of the prosecutrix and incase this
incident did take place she was a consenting party; that the
petitioner/Vipin lost his father due to societal ostracization and
presently his mother is suffering from various old age ailments
without anyone to look after her; that the prosecution has no
private witnesses which negates the possibility of tampering with
the evidence; that the petitioner/Vipin is ready to give surety for
securing his presence before the Trial Court and thus, should be
granted bail.
4. Adopting the aforesaid contentions raised on behalf of the
petitioner/Vipin, Mr. Abhay Kumar, learned counsel for the
petitioner/Manoj @ Tinky further contended that the entire case of
the prosecution is concocted as there is an unexplained delay of
approximately 17 hours in lodging the complaint; that during her
examination before the Metropolitan Magistrate the prosecutrix has
totally diverted from her previous statements recorded with police
official; that another FIR No. 77/2013 under Section 509 IPC at
Police Station-Kingsway North-West Distt. Delhi and FIR No.
316/2014 under Section 354 IPC at Police Station-Kingsway
North-West Distt. Delhi have been registered at the instance of the
prosecutrix; that through CDR, it can be proved that the prosecutrix
had telephonic conversations with her nearest relative immediately
before and after she was subjected to alleged rape but she never
disclosed it to the person she spoke to on the phone; that the
petitioner/[email protected] has an aged mother who is in constant
need of care and that he is the sole wage earner for the family; that
there is no possibility of tampering with the evidence as out of 15
witnesses the prosecution has examined 9 witness including the
prosecutrix and thus, should be granted bail.
5. Per Contra, Ms. Anita Abraham, APP for the State vehemently
opposed the bail applications and submitted that the petitioners are
not liable to be granted regular bail as they have been actively
involved in the commission of a heinous offence where the
punishment is more than 20 years; that there is scientific
evidence/material on record in the form of DNA against the
petitioner/Vipin who in the company of the petitioner/Manoj @
Tinky have committed gang-rape on the prosecutrix; that in such
cases, there is presumption which has to be drawn once sexual
intercourse by the accused is proved and the prosecutrix states
before the Court that she did not consent for the said intercourse;
that in the said case, sexual evidence has been established by way
of DNA evidence and the prosecutrix has stated that it was done
against her will; that the petitioners may threaten/influence the
witnesses and tamper with the evidence and might also violate the
conditions of the bail and hence the present petitions are liable to
be dismissed.
6. I have heard the learned counsel for the parties at length and
perused the material on record.
7. At the outset, it is observed that the prosecutrix (PW-3) deposed
that petitioner/Vipin called her and asked to come near dhaba; that
she reached there by her scooty and petitioner/Manoj @ Tinky was
also there in their car; that petitioner/[email protected] parked her
scooty and asked her to accompany them in their car; that both
petitioners were consuming liqour and drove towards Ghanta Ghar;
that both the accused persons kept on consuming liquor (beer) and
also made her drink the same; that they insisted her to consume
liquor on which she became intoxicated and petitioner/Vipin raped
on her and after a short while petitioner/Manoj @ Tinky raped on
her; that the car started moving and she opened the window pane
and shouted for help but petitioner/Vipin pulled her hand inside the
car and did not allow her to raise alarm; that when she regained
consciousness, she found that petitioner/Vipin was on driver seat
and petitioner/[email protected] was with her on rear seat of the car;
that petitioner/[email protected] was trying to commit rape on her to
which she resisted and she again became unconscious; that on
regaining the consciousness, she had a quarrel with the petitioners
and they requested not to make any complaint and when she
insisted, they locked her in the car and fled away; that she came out
of the car as the door was not properly locked; that she did not go
to the police station and went to the house of Chacha of
petitioner/Vipin and came to know that he was not at home; that
she went to her house and woke up in the late evening; that at
about 7:00-7:30 p.m. she made a PCR call and police took her to
the police station.
8. Dr. Sonal Goyal, Medical Officer, NRC Department, District
Hospital, Sheopur, MP proved the MLC Ex.PW2/A of the
prosecutrix and deposed that she did not find any injury on her
person at the time of examination neither was there complaint of
any injury by her.
9. Furthermore, the FSL report suggests that neither blood stains nor
semen stains could be detected from any of the articles which were
lifted from the vehicle nor matched with the petitioners.
10. Keeping in view the facts and circumstances of the present case, I
find the present case fit for grant bail to both the petitioners subject
to the following conditions:-
a) That the petitioners shall furnish a personal bond in the sum
of Rs.25,000/- each with one surety of the like amount
subject to the satisfaction of concerned Trial Court;
b) that the petitioners shall not leave the territorial jurisdiction
of Delhi NCR without prior permission of the Court;
c) that petitioners shall not try to contact/influence the
witnesses of the present case;
12. Before parting with the above order it is made clear that the
observations made in the order shall have no impact on the merit of
the case.
13. With above directions, the present petitions are disposed of.
14. Copy of this order be given dasti under the signatures of Court
Master.
SANGITA DHINGRA SEHGAL, J
OCTOBER 12, 2017
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