Devender Kumar @ Rahul vs The State, Govt. Of Nct Of Delhi
2021 Latest Caselaw 833 Del

$~1
*IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Date of decision: March 10, 2021

+     BAIL APPLN. 3774/2020

      DEVENDER KUMAR @ RAHUL           ..... Petitioner
                  Through: Mr. K.Rana, Advocate

                         Versus

      THE STATE, GOVT. OF NCT OF DELHI ... Respondent
                    Through: Mr. Amit Chadha, Additional
                              Public Prosecutor for State
                              with WASI Sunita

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                       JUDGMENT (ORAL)

% The hearing has been conducted through video conferencing.

1. Vide this petition, petitioner is seeking bail in FIR No.

496/2019, under Sections 363/376/342/506 IPC and Section 4 of

Protection of Children from Sexual Offences Act, registered at

police station Harsh Vihar, Delhi. Petitioner is stated to be in

custody since 02.10.2019.

2. The case of the prosecution, as per the FIR, is that the

complainant has alleged that a month prior to the incident, she had

met the petitioner and became friendly with him. On 30.09.2019, he

took her to a restaurant where they had chowmin and thereafter, they

boarded a bus and when she asked as to where they were going,

petitioner first said that they were just roaming about and after some

time he asked her to remain quite or to face dire consequences.

Thereafter, prosecutrix/complainant was taken to someone's house

by the petitioner, where she met one uncle. Prosecutrix/complainant

requested that Uncle to drop her to her house, to which he replied

that she should first call her parents to get petitioner's parents

released and thereafter only, she would be sent to her house.

Prosecutrix/complainant has further alleged that at night, petitioner

slept with her and did wrong acts with her and it was only in the

morning at around 05:00 am that her parents and two uncles came

there and rescued her and soon upon reaching Delhi, the FIR in

question was got registered at the police station.

3. At the hearing, learned counsel for the petitioner submitted

that petitioner and prosecutrix/complainant were having a love affair

against the wishes of parents of prosecutrix/complainant and

therefore, petitioner has been falsely implicated in this case by the

prosecutrix/complainant at the instance of her parents.

4. Learned Additional Public Prosecutor for State has opposed

the present petition and submitted that on 04.10.2019, the

prosecutrix/complainant was produced before the court and in her

statement recorded under Section 164 Cr.P.C. , she had supported

her complaint and further added that petitioner had made forceful

relations with her. Learned Additional Public Prosecutor for State

submitted that at the time of alleged incident

prosecutrix/complainant was a minor girl, aged 16 years and in the

DNA examination report received from FSL, Rohini, New Delhi, it

is opined that DNA could not be examined as semen could not be

detected on the exhibits. He submitted that this does not belie the

story of the prosecution and keeping in view that the

prosecutrix/complainant was a minor and there are allegations of

abduction and rape against the petitioner, the present petition

deserves to be dismissed.

5. At this stage, learned counsel for petitioner pointed out that

the version of prosecutrix/complainant before the doctor, who had

conducted her medical examination, is totally different from the one

made in the complaint. It is pointed out that before the doctor,

prosecutrix/complainant had said that petitioner was living in her

vicinity and he had offered her to go to mela near their house and

thereafter, he offered her to go for another mela in Karkardooma and

on the pretext of going there, they had boarded a bus, but petitioner

took her to his grandmother's (nani) house and threatened her that

he would harm her parents if she raised a voice. Both of them

reached at petitioner's grandmother's (nani) house at around 07:00

p.m. on 03.09.2019, where she took bath and changed clothes given

by petitioner's cousin sister and after having dinner at around 08:30

p.m., she went to sleep with petitioner's cousin sister. The

prosecutrix/complainant further stated that in the morning at around

05:00 a.m. when she was woken up by her mother, she was topless.

She specifically stated that she is not aware as to what happened to

her in between 09:00 p.m. on 01.09.2019 till 05:00 a.m. of

02.10.2019.

6. Learned counsel for petitioner further pointed out that in her

statement under Section 164 Cr.P.C. recorded before the court,

another version of prosecutrix/complainant is forthcoming. It is

submitted that prosecutrix/complainant therein had stated that on

30.09.2019, when she came out of her tuition, she saw the petitioner

standing there, who was her friend for last one month and thereafter,

both of them went to a restaurant where they had chowmin and

thereafter, they came back. She had further stated that on the same

night around 08:00 p.m., while she was riding a cycle, petitioner met

her and offered her to show Ramlila and she went with him and at

around 10:00 p.m. when she told him that she wanted to go back, he

threatened her and thereafter they boarded a bus and petitioner took

her to a far off forest area and from there to the house of his

relatives, who did not permit her to make a call to her parents and

when she secretly made a call, they threatened her to get first

petitioner's parents released from the jail. Prosecutrix/complainant

further stated that she stayed there for two days and on 01.10.2019,

petitioner shut her mouth and made physical relations with her.

7. It is submitted on behalf of petitioner that the aforesaid

different versions put forth by prosecutrix/complainant shows that

he has been falsely roped in this case and therefore, he deserves the

benefit of bail.

8. The rival contentions raised by both the sides have been heard

and I have gone through the material placed on record.

9. There is no doubt that the in the narration of the alleged

incident by the prosecutrix/complainant in the FIR in question, her

statement before the doctor at the time of medical examination and

also her statement under Section 164 Cr.P.C., different versions

have been put-forth by the prosecutrix/complainant. It is

specifically mentioned in the MLC that the victim had no pain of

abdomen and on genitilia or any bleeding and also that hymen was

old and torned. It is also mentioned that since there is no fresh

injury. Moreover, no semen could be detected on the exhibits sent

and for this reason, DNA test could not be done.

10. Petitioner is behind bars since 02.10.2019. This Court is

informed that investigation is complete and charge sheet in this case

has already been filed. Keeping in view the aforesaid facts and

circumstances, without commenting on the merits of the case, I find

that petitioner deserves to be released on bail.

11. Accordingly, petitioner is directed to be released on bail

forthwith on his furnishing personal bond in the sum of Rs.20,000/-

with one surety in the like amount to the satisfaction of the trial

court.

12. The petitioner shall not directly or indirectly influence the

witnesses or tamper with the evidence and shall appear before the

court as and when directed.

13. The petition is accordingly disposed of.

14. A copy of this order be transmitted to the Jail Superintendent

concerned and trial court for information and necessary compliance.

(SURESH KUMAR KAIT) JUDGE MARCH 10, 2021 r