Lakhan vs The State
2020 Latest Caselaw 560 Del

$~9
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of Decision: 28.01.2020
+       BAIL APPLN. 3244/2019
        LAKHAN                                     ..... Petitioner

                           Through:   Mr. Kali Charan, Advocate.

                           versus

        STATE OF NCT OF DELHI                      ..... Respondent

                           Through:   Mr G.M. Farooqui,
                                      APP for State with SI
                                      Pushpender PS: Ambedkar
                                      Nagar.
                                      Mr. Rohitash, Ld. Counsel for
                                      Complainant with
                                      Complainant in person.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
                    JUDGMENT

BRIJESH SETHI, J (ORAL)

1. Vide this order, I shall dispose of a bail application filed

under section 439 Cr.P.C. by the petitioner Lakhan in FIR No.

536/2018 u/s. 363/365/376 IPC & 6 POCSO Act, PS Ambedkar

Nagar.

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

ground that petitioner is innocent and has been falsely implicated.

Bail Appl. no. 3244/2019 Page no.1 of 5 Petitioner is in judicial custody since 01.05.2019. It is submitted

that prosecutrix had eloped with the petitioner on her own free will

on 11.11.2018. In her statement recorded under Section 164 Cr.P.C.

dated 04.04.2019, prosecutrix has stated that she did not make any

physical relations with the petitioner and left her parental house on

her own free will alone and the petitioner was not with her.

However in her later statement recorded on 23.05.2019 under

Section 164 Cr.P.C. she has stated that she established physical

relations with the accused Lakhan on her own free will and consent.

It is submitted that benefit of this changed statement should go to

the petitioner. It is further submitted that the age of prosecutrix was

above 18 years when she had eloped with the petitioner. It is further

submitted that prosecutrix even refused to go for internal medical

examination and in the absence of proper medical examination of

the prosecutrix, no offence under Section 376 IPC is made out. It is

further submitted that chargesheet in this case has already been filed

and case is pending before Ms. Priya Mahindra, Ld. Addl. Sessions

Judge (POCSO), District South, Saket Courts, New Delhi. It is,

therefore, prayed that petitioner be released on bail in the interest of

Bail Appl. no. 3244/2019 Page no.2 of 5 justice.

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

ground that allegations against the petitioner are serious in nature.

Petitioner has made physical relations with the prosecutrix who was

15 years and, therefore, her consent is immaterial. He has, therefore

prayed for dismissal of the bail application.

4. I have considered the rival submissions. The prosecution

version is that on 12.11.2018, complainant Jaiprakash s/o Sh.

Masicharan R/o E-167, Daxinpuri had given a complaint at PS

Ambedkar Nagar regarding missing of his daughter, aged 15 years

and raised doubt on petitioner Lakhan. On the said complaint, the

present FIR bearing no. 536/18, under Section 363 IPC was

registered. During the course of the investigation the prosecutrix

was produced before the CWC and on 04.04.2019, her statement

U/S: 164 CrPC was recorded by the Ld.M.M, Anjani Mahajan,

Saket Court, South. During the course of the investigation copy of

birth certificate was also taken from the school. On 01.05.2019,

petitioner surrendered in the court and after interrogation he was

arrested. On 23.05.2019, statement of the prosecutrix under Section

Bail Appl. no. 3244/2019 Page no.3 of 5 164 CrPC was again recorded by the Ms.Alka Singh, MM, Saket

Court, South wherein prosecutrix has stated that she eloped with

petitioner at his (petitioner) instance to Himachal Pradesh and lived

with him at Dharamshala and Hisar for around 4-5 months. They

had sexual intercourse but it was consensual. She further stated that

she has not spoken truth in her earlier statement dated 04.04.2019

recorded under Section 164 Cr.P.C. as she was scared and wanted to

protect the petitioner.

5. The prosecution has placed on record order dated 25.01.2020

vide which Ld. ASJ Ms. Priya Mahendru has decided the age of the

prosecutrix on an application moved by the petitioner for conducting

appropriate medical test to ascertain correct age of prosecutrix and

observed that the birth certificate shows that the date of birth of the

prosecutrix is 10.08.2003. The birth certificate from the school also

shows that the date of birth of the prosecutrix is 10.08.2003. As per

Section 94 of Juvenile Justice (Care and Protection of Children) Act,

2015, for determining the age of any victim of sexual offence, first

document which is to be considered is Date of Birth Certificate

issued from school or Matriculation or equivalent Certificate from

Bail Appl. no. 3244/2019 Page no.4 of 5 concerned examination Board. The Ld. ASJ has, thus, held that date

of birth of the prosecutrix was 10.08.2003.

6. The above facts reveal that prosecutrix was about 15 years old

at the time of the alleged offence and her consent for sexual

intercourse was therefore immaterial. In these circumstances,

keeping in mind the nature of offence, no grounds for bail are made

out. The bail application is, therefore, dismissed and stands

disposed of accordingly.

                                                 BRIJESH SETHI, J
JANUARY 28, 2020
Ak




Bail Appl. no. 3244/2019                                  Page no.5 of 5