Sajid vs State (Govt. Nct Of Delhi)
2019 Latest Caselaw 5834 Del

$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment delivered on 21.11.2019

+      BAIL APPLN. 1929/2019

       SAJID                                         ..... Petitioner

                          Through:     Mr. Ram Kumar, Mohd. Asif
                                       and Bramjeet Singh, Advocates.
                          versus

       STATE(N.C.T. OF DELHI)                        ..... Respondent

                          Through      Mr. G.M.Farooqui,
                                       APP for State.
                                       SI Dinesh Kumar:
                                       PS Jamia Nagar

       CORAM:
       HON'BLE MR. JUSTICE BRIJESH SETHI

                              JUDGMENT

BRIJESH SETHI, J.(Oral)

1. Vide this order, I shall dispose of a bail application u/s. 439(1)

r.w Section 482 CrPC filed by the petitioner Sajid in FIR No.

1297/2016, under Section 376 IPC & Sec. 6 POCSO Act, P.S. Jamia

Nagar, Delhi and setting aside of impugned order dated 31.05.2019

passed by the Ld. Additional Sessions Judge-01 South-East, Special

court (POCSO), Saket District Court, New Delhi.

2. Ld. Counsel for the petitioner has prayed for bail on the ground

that petitioner is innocent and falsely implicated. He has clean

antecedents. It is submitted that Ld. Trial Court has failed to

appreciate that the marriage/nikah was performed between the

prosecutrix and petitioner according to muslim rites and rituals and

they have started living as husband and wife and prosecutrix got

pregnant. It is further submitted that Ld. Trial Court failed to

appreciate that complainant gave contradictory version under Section

161 and 164 Cr.P.C. during the investigation. Two documents for

determining the age of the prosecutrix has come on record which are

contrary to each other.

3. It is further submitted that Ld. Trial Court has failed to

appreciate that the investigation in the present case has been

completed and charge sheet has been filed. It is further submitted that

Ld. Trial court has failed to give any cogent reason while dismissing

the bail application of the petitioner and passed the impugned order

only on the basis of apprehension.

4. It is further submitted that Ld. Trial court has failed to

appreciate that the complainant in conspiracy with her associates with

intention to grab the property of the petitioner opened fire upon her

mother and got registered the case and IO of the said case after

investigation filed cancellation against the petitioner which clearly

proves the conspiracy against the petitioner.

5. It is further submitted that Ld. Trial Court has failed to

appreciate that the charges were framed on 15.09.2018 against the

accused under Section 376D IPC and Section 6 POCSO Act and

prosecutrix has been examined wherein she has retracted from her

original version.

6. It is further submitted that Ld. Trial Court has failed to

appreciate that the prosecutrix is living with parents of the petitioner

and contently married with the petitioner and she had filed the present

case under duress. Prosecutirx has also admitted her nikah with the

petitioner. All the public witnesses have been examined and petitioner

is no more required for the purpose of investigation.

7. It is lastly submitted that investigation in all respect have been

completed and charge sheet has been filed and the material witnesses

have been examined therefore, petitoner be, released on bail, in the

interest of justice.

8. Ld. APP for the state has opposed the bail application on the

ground that allegations against the petitioner are serious in nature.

Petitioner has sexually assaulted the petitioner when she was minor.

He has, therefore prayed for dismissal of the bail application.

9. I have considered the rival submissions. The present case FIR

No. 1297/16 u/s. 376 IPC & 6 POCSO Act, PS Jamia Nagar, New

Delhi was registered on 11.12.2016 on the statement of

complainant/prosecutrix alleged to be aged about 15 years. She has

alleged that her friend Saba had introduced her to petitioner Sajid and

later on petitioner Sajid took her to a flat in Shaheen Bagh, Jamia

Nagar, New Delhi, where he exploited the prosecutrix and made

forceful intercourse with her and also recorded her video. He used

that video to blackmail prosecutrix and threatened her that if she did

not indulge in sexual activity with him, he will upload her recorded

video on internet. She further alleged that petitioner Sajid also brought

3 other people along with him in the month of August and all of them

raped her turn by turn. Thereafter, prosecutrix came to know that she

has become pregnant and informed the aforesaid incident to her

mother. Medical examination of the prosecutrix was got conducted

from AIIMS hospital and it was confirmed that prosecutrix is

pregnant. Statement of the prosecutrix u/s. 164 CrPC was recorded in

which she corroborated the aforesaid incident and allegations levelled

against the petitioner.

10. On 23.12.2016, petitioner Sajid was arrested and during police

custody he had also disclosed the name of his other associates as

Juber, Waseem and Firoz who were involved in this case along with

petitioner Sajid. DNA sample of petitioner Sajid was also obtained for

FSL purpose. On 15.06.2017, prosecutix has given birth to a baby at

Hamdard Majidia Hospital. During the course of investigation, the

DNA samples of baby and mother were collected from hospital.

Thereafter, IO had also sent the samples including the sample of

petitioner Sajid to FSL Rohini for expert opinion. Scrutiny of the FSL

report, dated 25.01.2018 revealed that petitioner Sajid is biological

father of the baby of the prosecutrix. During the course of

investigation, transfer certificate of prosecutrix was verified from the

concerned school. According to one transfer certificate, her date of

birth is 15.08.1998. Though on the date of registration of case on

11.12.2016, the age of prosecutrix was 18 years and three months,

however, the prosecutrix has stated in her statement that she was raped

by the petitioner in July, 2016. Thus, at the time when offence was

committed, the prosecutrix was minor.

11. It is a settled law that while granting bail, the court has to keep

in mind the nature of accusation, the nature of evidence in support

thereof, the severity of the punishment which conviction will entail,

the character of the accused, the circumstances which are peculiar to

the accused, his role and involvement in the offence, his involvement

in other cases and reasonable apprehension of the witnesses being

tampered with. The offence committed by the petitioner is serious in

nature. Petitioner had taken prosecutrix to a flat in Shaheen Bagh,

Jamia Nagar, New Delhi and raped her in July, 2016 when she was a

minor.

12. Though it is contended by learned counsel for the petitioner that

since both the petitioner and prosecutrix are living as husband and

wife, no offence is made out against the petitioner. However, I am not

in agreement with the contention of learned counsel for the petitioner.

As per transfer certificate, date of birth of prosecutrix is 15.08.1998

and as per statement of prosecutrix, she was raped by the petitioner in

July, 2016 i.e. when she was a minor.

13. The alleged solemnization of marriage of petitioner with victim

vide nikahnama dt. 17.08.2016 is of not much help to him since

offence of rape is a very serious and grave one and cannot be

compounded/settled and subsequent marriage does not exonerate the

petitioner from the alleged commission of offence. It is also difficult

to ignore the fact that when victim was sexually assaulted, the

petitioner was already married and had five children. It may further

be noted that during her examination in chief in court on

04.02.2019, the victim has categorically stated that petitioner had

made forcible physical relations with her after removing her clothes.

She has also deposed that her date of birth is 15.08.2001 as per school

record. In her cross examination, she has categorically denied the

suggestion that no forcible relations were made by the accused with

her in last week of July, 2016.

14. In view of the above facts appearing on record and also keeping

in mind the fact that even if date of birth of victim is taken to be

15.08.1998 and not 15.08.2001 (as there are two certificates showing

different dates of birth of victim), the victim was a minor at the time

of commission of offence in July 2016 and further in view of the fact

that victim has supported the prosecution version of sexual assault by

the petitioner, no grounds for bail are made out. The bail application

is, therefore, dismissed and stands disposed of accordingly.

BRIJESH SETHI, J NOVEMBER 21, 2019 AK