Delhi High Court
Luxmikant vs State(Govt Of Nct Of Delhi) on 8 December, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 22.11.2021
Date of decision: 08.12.2021
+ BAIL APPLN. 3852/2021
LUXMIKANT ..... Petitioner
Through: Mr. Virender Pratap Singh Charak,
Mr. Shubhra Parashar, Mr.Pushpender
Singh Charak, Mr. Ram Pal Singh
Tomar, Advocates.
Versus
STATE(GOVT OF NCT OF DELHI) ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State
with SI Parmjit Singh, PS Prem
Nagar.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J
1. The applicant, vide the present application seeks the grant of
bail in relation to FIR No.554/2020, PS Prem Nagar under Sections
323/363/366/376D/199 of the Indian Penal Code, 1860 r/w Section 12
of the POCSO Act, 2012 and Section 67 of the IT Act, 2020
submitting to the effect that he has been incarcerated since 27.12.2020
and has been falsely implicated in the instant case and that he is
wholly innocent.
2. Notice of the application was issued to the State as well as to
the prosecutrix.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
3. The prosecutrix was present in person on 22.11.2021 and
opposed the bail application of the applicant.
4. The status report dated 11.11.2021 was submitted by the State
under the signatures of the SHO, PS Prem Nagar along with the copy
of the statement under Section 164 of the Cr.P.C., 1973 of the
prosecutrix dated 27.12.2020.
5. The applicant has submitted that the relations between the
applicant and the prosecutrix were wholly consensual and that the
prosecutrix was in fact his wife and it is because the prosecutrix
wanted a mutual consent divorce only two months after the marriage
because of a rift between the parties and as the applicant/petitioner
was not inclined for a divorce, the FIR in question was lodged. Inter
alia the applicant has submitted that though the FIR was registered
under Section 376D of the Indian Penal Code, 1860, two other co-
accused persons in the instant case are on bail which itself negates the
allegations against the applicant.
6. The applicant has further submitted that he and the prosecutrix
were married on 29.09.2020 at the Arya Samaj Sanatan Vaidik
Sanskar Trust according to Hindu rituals and customs and that the
marriage certificate and photographs attached with the application do
not show any kind of pressure or force or undue influence upon the
prosecutrix and do not show any kind of fear on her face and that she
was a major at the time of the marriage and had even stayed with the
applicant at his house for about two months after the marriage. Inter
alia the applicant submits that the family members of the prosecutrix
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
were informed about their marriage and the prosecutrix was in regular
touch with her parents and so were the parents of both sides.
7. The applicant has submitted also that the allegations in relation
to the alleged rape and kidnapping attributed to him are wholly false
that the charge sheet in the matter has been filed and that there are
material contradictions in the version that the prosecution has put forth
during the course of the investigation and no useful purpose would be
served by further incarceration of the applicant.
8. As per the averments in the FIR registered on 26.12.2020, it had
been stated by the prosecutrix that she was 18 years of age and that in
the year 2018 she was studying in Standard IX and from that time, the
applicant used to tease her whilst she went to her school and that this
continued for about 1½ years, that whenever she went out, the
applicant teased her and that in July 2020 they became friends because
the applicant used to say that if she did not want a boyfriend, she
could make him a friend. She further stated that 2-3 days prior to the
marriage (apparently a reference to her own marriage with the
applicant) the applicant had sent a photograph of his cut hand and one
photo that was sent by the applicant showed a mark on his neck to
indicate that he was attempting to hang himself and he had told his
friend that the photograph be showed to the prosecutrix and she be
told that if she did not meet him, he would die and would falsely
implicate her brothers and would also get her humiliated and thus the
prosecutrix went to meet the applicant at the 70 ft road near the
Amarwati Hospital at about 10 a.m. where the applicant Luxmikant,
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
Vipul, Bala and Mohit were present and the applicant once again
showed her the photograph in which he had cut his hand and told her
that he would die if she did not accompany him to his house and she
was not agreeing to go and at that time Luxmikant, the applicant and
his three friends, had forcibly caught her and took her to the
applicant's house and took her to a room on the third floor and there
the accused Bala had caught hold of her hands, and the accused Vipul
caught hold of her legs and the applicant raped her of which a video
was made by the accused Mohit and then the applicant told her to
accompany him to get married otherwise he would make the video
viral and then the applicant booked an Ola and took her to the Tis
Hazari Courts and there he married her according to the Arya Samajic
Rites at the Tis Hazari Court and after the marriage he took her to his
home and used to beat her at his house and his mother also used to
beat her and one day on finding an opportunity she ran away from the
house of Luxmikant but he caught hold of her and brought her back
and hit her head against the wall, but that on 28.11.2020, when he was
sleeping, she went to the terrace and called the police and the police
came and got her freed from there and left her at her mother's house
and thereafter she continued to live at her parental home.
9. It has been stated further through the FIR that on 24.11.2020,
she had gone to the Arya Samaj to get her marriage cancelled but the
staff had informed the applicant but the applicant had not come and in
the evening the applicant had sent an obscene video of hers on to her
father's phone and told him that if she was not sent to his house within
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
two days, he would make the entire video viral. As per the FIR
registered on 26.12.2020, on 25.12.2020 SI Paramjit Singh on receipt
of DD no. 32 A along with Ct.Narender No.2940/RD had gone to the
spot House No.K-1/292 at Prem Nagar-II, Delhi where he met the
prosecutrix who had stated that she would come subsequently along
with her family members and would give her statement and thereafter
that night the complainant with her family members came to the
Police Station and gave a written complaint to the SI and thereafter the
NGO Counsellor was called and the complainant was also examined at
the SGM Hospital, Mangolpuri vide MLC No. 305A/2020 wherein it
was recorded by the doctor to the effect:-
" Victim knows accused named Laxmi Kant (20 yr)∵
2018, he was his school senior.
They became friends, 5 months back
Laxmi Kant likes her since 2018 but they are not friends
He attempts suicide (?) & showed incised marks of
suicide on hand, photographs through facebook.
He asked her to meet her, otherwise he commit suicide
Then on 29th Sept. 2020, she met him - there were his 3
friends also present.
They took her to Laxmikant's home - 3 of them hold her
hands & legs & Laxmikant raped her & one of them
made her video.
Then he forced her for marriage & forcibly married to
her in Arya Samaj Mandir.
Her Mother in law was involved in prostitution business.
She forced her to do the same for money making - she
refused - then her mother in law, beat her
Then finally on 28.11.2020, she came to her own home
through police."
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
10. On the basis of the statement and the MLC, the FIR was
registered under Sections 363/376D/366 of the Indian Penal Code,
1860 and Section 12 of the POCSO Act, 2012. Though in the FIR the
date and time of the incident was not known but the place of the
incident was mentioned as Prem Nagar II, Kirari, Delhi with the rukka
having been presented on 11:50 a.m. on 26.12.2020.
11. DD No.32A dated 25.12.2020 as recorded at Police Station
Prem Nagar at 11:56:32 on the basis of which the Investigating
Officer had gone to the spot reads to the effect:
"Ref. Event ID - 2527981, Incident Address: 292, BLOCK-
K-1 PREM NAGAR-2 KIRARI SULEMAN NAGAR,North
West Delhi,Sultanpuri C Block,Delhi,110086, Incident
Description: CALLER LADY KI KUCHH DIN PAHLE
JABARDASTI SAADI HUI THI AB LADKI APNE GHAR
AAI HUI HAI LADKA WAPIS APNE GHAR AANE KE
LIYE BOL RHA HAI AUR DHAMKI DE RHA HAI LADKI
NE THANE ME COMPLANT KAR RAKHI HAI AAJ BHI
THANE ME GYE THE THANE WALE KUCHH NAHI KAR
RHE HAI, Mobile No:9971265662, 9971265662, From: CT
MONIKA, 10129/PCR, हस्ब आमद इत्तला PCR CALL दर्ज
कंप्यूटर करके SI RANDEEP SINGH D -5316 के हवाले की
गयी | र्ो रवाना मौका हुए| र्ो मुनासिब कायजवाही अमल में
लाएं गे| submitted by HC/DO "
12. The prosecutrix through her statement under Section 164 of the
Cr.P.C., 1973, dated 27.12.2020 put forth her age on that date as being
18 years and stated that she was studying in standard X. Through the
statement under Section 164 of the Cr.P.C., 1973 the prosecutrix
stated that 1 ½ to 2 years ago prior to her statement, the applicant used
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
to harass her used to follow her whenever she went to school and used
to tease her on the road and used to send her photographs of his
cutting his hand and trying to commit suicide and these photos were
shown to her by Vipul and Mohit, friends of Laxmikant, and that
about a year ago Vipul brought a letter sent by the applicant in which
it was mentioned that he would die and that she should talk to him and
such kind of letters were sent by him 5 to 6 times and that as a
consequence thereof she started talking to the applicant and if she did
not talk to him, he used to slap her on her way and assault with fists
blows and thus out of fear she started talking to him in January-
February and whenever she did not talk to him he used to threaten her
that he would cut his hand and commit suicide.
13. Through her statement the prosecutrix stated that the applicant
Luxmikant told her to make a video whilst she was bathing and asked
her to take the photo whilst she was talking and laughing so that
everyone would think that she was talking to him of her own accord
and that she thus made a call in the same manner as stated by the
applicant. The prosecutrix submitted further that the applicant had
saved that video. The prosecutrix submits that on the basis of this
video the applicant used to torture her everyday and the applicant
called her again to his house on 29.9.2020 and told that if she did not
come to his house the video would be made viral and she had gone to
his house and asked him to delete the video but he did not delete the
same and he took her to a room in his house and had sex with her and
Vipul, Mohit and Bala had confined her in the room and then the
applicant had forcible sexual relations with her against her wishes in
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
the room and thereafter after all this, he took her to the Tis Hazari
Courts and snatched her gold chain from her neck and took her to the
Court and forcibly married her and that from the side of Luxmikant,
i.e., the applicant, two person Sonu and Malti were present but there
was no one from her side.
14. Inter alia, the complainant stated that her family members had
already lodged a complaint to the police that the applicant aged 20
years had given money to his counsel and got the marriage performed
and the police had called the applicant to the Police Station on that day
itself and he took her to the police station also and that he had her
videos and thus she did not say anything in the presence of her family
members and the police and she could not talk to her family members
and the police had sent her family members home and sent her and the
applicant to the applicant's house where the applicant beat her a lot
and so did his mother .
15. Inter alia the prosecutrix in her statement under Section 164 of
the Cr.P.C., 1973 stated that the applicant's mother used to deal in
prostitution and was also beating her for taking her for the same but
she had not gone. Thereafter she used to be beaten and her husband
(apparently reference to the applicant) used to get her photographs
clicked and put it on the Facebook so that everyone would think that
she was happy and the applicant's elder brother also used to ask her to
get the videos made whilst laughing and taking off her clothes and
once she had made an attempt to run but Vipul, Bala and Mohit had
apprehended her and brought her back to the applicant who had
beaten her and that this had taken place after 29.9.2020 and before
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
28.11.2020, that thereafter on 28.11.2020 she found the phone of the
applicant in the morning and when everyone was sleeping she thus
telephoned the police and the police came after about 1 ½ hours as she
kept telephoning the police whereafter the police came and took her to
the Police Station, called her family members and she told her family
members everything and the police said that it was a matrimonial
dispute and the matter would have to go to the Court and she thus
went to her home and after 15/20 days she went to the Arya Samaj
Temple to get her marriage cancelled but a lawyer telephoned the
applicant to come and sign and the applicant had stated that he would
see whether he would come or not and the prosecutrix and her family
members had thus come home.
16. Inter alia the prosecutrix through her statement under Section
164 of the Cr.P.C., 1973 stated that the applicant had sent her obscene
videos to her brother and had told him that she should be sent back to
his house within two days or that the videos would be made viral and
that her brother had gone to the Police Station to show the message
but the police did nothing. Thereafter they had taken the assistance of
news reporters and thus the reporters staged a dharna outside the
police post whereafter the FIR was registered otherwise the police
used to say that it was a matrimonial dispute between husband and
wife.
17. It is the avowed contention of the applicant/petitioner that he
has been falsely implicated in the instant case, that there are variations
in the statement made by the prosecutrix when the FIR was registered
and in her statement under Section 164 of the Cr.P.C., 1973 in relation
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
to the manner in which she was allegedly raped by the petitioner for
whereas as per the FIR on the persistent demand of the petitioner to
meet the prosecutrix or else he would commit suicide, she met the
petitioner on 29.09.2020 and his three friends were present i.e. Vipul,
Bala and Mohit and the petitioner had showed her his phone that he
was slicing his hand and told her that he would die if she did not
accompany him and then she was not going but the petitioner and his
three friends caught hold of her, took her to the petitioner's house and
took her to a room on the 3rd floor and there the co-accused Bala
caught hold of her hand and the co-accused Vipul caught hold of her
feet and the petitioner raped her of which a video was made by the co-
accused Mohit, whereafter, the petitioner told her to get married to
him or else he would make the video viral, whereafter, the marriage
was solemnized, as per the statement of the prosecutrix under Section
164 of the Cr.P.C., 1973 dated 27.12.2020, in January-February 2020
after the applicant had been repeatedly sending photographs of his
cutting his hand or trying to attempt to commit suicide through his
friends Vipul and Mohit and the petitioner had also sent her 5-6 letters
that he would die if she did not talk to him and in January-February
2020, she had started talking to the petitioner and whenever she did
not talk to him he would threaten to kill himself or cut his hand and
had one day told her that he had made a video call to her while she
was bathing and asked her to talk whilst laughing so that everyone
could think that she was talking to him of her own accord and she did
the same and the petitioner had saved that video and used to torture
her with that video and on 29.09.2020 he had called her to his house
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
and told her that if she did not come, he would make the video viral
and when she went to his house and asked him to delete the video, he
did not do so and rather took her to a room in his house and his friends
Vipul, Bala and Mohit had locked her in the room and the petitioner
thereafter had forcible physical relations with her and thereafter got
married to her at the Tis Hazari Court, Delhi and gave his false age.
ANALYSIS
18. Undoubtedly, there appears to be some variance in the
statement which forms the basis of the FIR and the statement under
Section 164 of the Cr.P.C., 1973, however, the prosecutrix through the
FIR and through her statement under Section 164 of the Cr.P.C., 1973
is consistent in her statement prima facie that the petitioner had had
forcible relations with her pursuant to which she had to get married to
him on 29.09.2020. The statement under Section 164 of the Cr.P.C.,
1973 of the prosecutrix also indicates to the effect that her nude
photograph whilst she was taking a bath had been taken by the
applicant with which he used to keep threatening her and torturing her
and the status report dated 11.11.2021 shows that there was a video
dated 25.06.2020 containing a mobile screen recording of a whatsapp
video call between the petitioner and the prosecutrix in which the
prosecutrix is nude and taking a bath in the bathroom and in the
second video the applicant/petitioner and the prosecutrix were getting
married at a place which looked like a temple.
19. The factum that the petitioner had in his possession a mobile
screen recording of a whatsapp video call between him and the
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
prosecutrix in which the prosecutrix was nude and taking a bath,
cannot be overlooked specifically in view of the submission that has
been made by the prosecutrix through her statement under Section 164
of the Cr.P.C., 1973 that the petitioner had also sent an obscene video
to her brother with also threatening him to send her back to his house
or he would make the video viral,- are aspects which cannot be
overlooked despite the factum that the prosecutrix had since been
married on 29.09.2020 to the petitioner.
20. Though, Vipul and Bala, the co-accused in the instant case are
stated to be on bail, the same per se does not suffice for the grant of
bail to the applicant in the instant case.
21. Undoubtedly, in the photographs of the marriage, the
prosecutrix does not seem unhappy and is rather seen smiling, but the
statement that she makes through her statement under Section 164 of
the Cr.P.C., 1973 is to the effect that the petitioner even after
assaulting her after the marriage, used to take her photographs and put
them on the facebook to show that she was very happy and that the
petitioner's brother also used to ask her to keep laughing and to get
videos made without clothes and that though she attempted to run
away from the house of the petitioner, she had been brought back by
Vipul, Bala and Mohit and that she was only able to escape when she
had been able to take the mobile of the petitioner when he was
sleeping on 28.11.2020 when she called the police, are aspects which
at this stage cannot be overlooked.
22. Furthermore, the prosecutrix had stated that the petitioner had
given his age falsely at the time of the marriage as he had not attained
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
the age of 21 years, which aspect has also been verified by the
Investigating Agency as per the status report dated 11.11.2021, that
the applicant had to submit a false affidavit qua his date of birth is also
an aspect which necessitates the drawing of an adverse inference
against him presently.
23. Taking into account thus, the gravity of the allegations levelled
against the applicant specifically in view of the factum that his mobile
phone contained a mobile screen recording of a whatsapp call between
him and the prosecutrix where the prosecutrix was found nude taking
a bath and the factum that the petitioner allegedly transmitted the
obscene photographs of the prosecutrix to the prosecutrix's brother
bringing him prima facie withing the domain of Section 67 of the IT
Act, 2020, this Court does not consider it appropriate to grant bail to
the applicant.
24. In view thereof, the prayer made by the applicant vide the
present bail application i.e. Bail Appl. No.3852/2021 seeking the grant
of bail in relation to FIR No.554/2020, PS Prem Nagar under Sections
323/363/366/376D/199 of the Indian Penal Code, 1860 r/w Section 12
of the POCSO Act, 2012 and Section 67 of the IT Act, 2020 is
declined.
25. Nothing stated hereinabove shall however amount to any
expression on the merits or demerits of the trial that may take place.
ANU MALHOTRA, J.
DECEMBER 08, 2021
'Neha Chopra'/sv
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:08.12.2021
18:16:41
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
