Delhi High Court
Akash vs State Of Nct Of Delhi & Anr. on 11 January, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: December 14, 2023
Decided on: January 11, 2024
+ BAIL APPLN. 3102/2022
AKASH ..... Petitioner
Through: Mr. Devendra Kumar,
Advocate.
V
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Yudhvir Singh
Chauhan, APP for State.
Mr. Nitin Saluja,
Ms. Shivani Luthra Lohiya,
Ms. Simran Khurana,
Advocates for complainant.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present bail application is filed on behalf of the
applicant/Akash S/o Kashi Ram under section 439 Cr.P.C. for grant
of regular bail in FIR bearing no.0196/2022 registered under section
363 IPC at P.S. Tigri.
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 1
2. The present FIR bearing no.0196/2022 was got registered on
the basis of the complaint dated 26.04.2022 made by "R" regarding
missing of his daughter since 24.04.2022. Thereafter ASI Dilbag
Hussain made efforts to trace the missing girl (hereinafter referred to
as "victim"). However, on 02.05.2022, someone had left the missing
girl in the police station. SI Manisha examined the victim and
recorded the statement under section 161 Cr.P.C. wherein the victim
stated that she had gone to market to purchase momos on 24.04.2022
at about 08-08:30 P.M. and when she was returning back to her
home, she sat in an auto which was being driven by Shahrukh.
Subsequently Salman @ Chesey, Sahil @ Chuttangi, Tamatar, Mohit
and Akash also came to sit in the auto. The victim was given a cold
drink and after consuming the cold drink she became unconscious.
The victim regained the conscious on the next day and found that the
lower portion of her abdomen was paining and her clothes were
found to be torn. The victim on 26.04.2022 at about 12:00 in the
night was attempted to be taken to Koshi but due to presence of
police personnel on the way she was brought back at the same place,
where Salman, Akash, Mohit and Sahil committed rape (galat kaam)
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 2
with her. ASI Dilbag Hussain arrested Akash @ Chuha S/o Sohan
Lal, Mohit S/o Dilip, Shahrukh S/o Ayyub Khan and A @ T who
was found to be a juvenile. The statement of victim was also
recorded under section 164 Cr.P.C. wherein she primarily reiterated
the contents of the statement under section 161 Cr.P.C. During
further investigation, Mohd. Kaif S/o Israil, Chandan S/o Pappu,
Mohd. Ilyas S/o Hameed Lovekush S/o Ramesh and Akash S/O
Kashi Ram, i.e. the applicant were also apprehended and their
disclosure statements were also recorded. The juvenile S @ C was
also apprehended on 21.05.2022. The victim was found to be aged
about 13 years. The applicant i.e. Akash @ S/o Kashi ram was also
subjected to the Test Identification Parade (TIP) but he could not be
identified by the victim. The victim only identified Luvkush S/o
Ramesh as one of the accused. After completion of the investigation,
the charge-sheet was filed.
3. The applicant filed a bail application before the trial court
which was ordered to be dismissed vide order dated 28.07.2022 by
the court of Ms. Shreya Arora Mehta, ASJ (FTSC) (POCSO),
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 3
District South, Saket Court, Delhi by observing that the allegations
against the applicant are heinous and grave in nature.
4. The applicant being aggrieved filed the present bail application
and seeks bail on the grounds that the applicant is an innocent person
of 19 years old and is not having any criminal antecedent. The
applicant has been falsely implicated in the case on the basis of
disclosure statement made by him and other co-accused. The
applicant is stated to be in judicial custody since 20.05.2022. The
applicant was not present in Delhi on the alleged date of commission
of offence. The victim could not identify the applicant in TIP
conducted on 20.06.2022. The applicant is not named neither in the
statement of the victim recorded under section 161 Cr.P.C nor in
statement recorded under section 164 of Cr.P.C. Accordingly, the
applicant prayed for grant of bail.
5. The respondent no.1/State filed the Status Report wherein it
stated the factual position as mentioned hereinabove. It is also stated
that during the investigation ASI Dilbag Hussain also apprehended
Lovekush@Lula S/o Ramesh, Chandan S/o Pappu, Ilyas S/o
Hameed, Mohd. Kaif S/o Israil, and Akash S/o Kashi Ram who in
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 4
their disclosure statement have confessed to commit the offence
subject matter of present FIR. The victim could not identify the
applicant as one of the offender during TIP. The applicant is not
involved in any other case previously. It is also stated that the present
bail application is liable to be dismissed.
6. The counsel for the applicant argued that the bail application
preferred by the applicant in the trial court was summarily dismissed
on the ground that the offences alleged against the accused person/s
are heinous and grave in nature, without considering the fact that
neither the applicant is named in FIR nor his name is disclosed by
the victim in her statements under section 161 & 164 Cr.P.C rather
the applicant is arrested & dragged in this case only on the basis of
disclosure statement of a co-accused. TIP proceedings were also
conducted wherein the victim failed to identify the applicant. He
further argued that the applicant was not in Delhi at the time of
alleged incident as he had gone to his native village to attend the
wedding of his elder brother on 24.02.2022 and status report with
CDR and tower details clearly shows that on date of occurrence i.e.
24.04.2022, the applicant's location was in UP and he reached in
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 5
Delhi in morning at 07.37 am of 25.04.2022. Medical report of the
victim does not support the allegations of the prosecution.
6.1 The counsel for the applicant further argued that the co-
accussed namely, Md. Kaif @ Anna S/o Israil, has already been
granted bail vide order dated 17.11.2023 in SC No. 273 of 2022
passed by the court of Ms. Sheetal Chaudhary Pradhan, ASJ-
(POCSO), South, Saket Courts, Delhi. Another co-accused namely
Akash @ Pramod @ Kabbaddi S/o Sh. Mohar Singh, who was
arrested on the 02.04.2023 on the basis of disclosure statement
having similar allegation was also granted regular bail vide order
dated 06.10.2023 in SC No. 738 of 2018 by the court of Ms. Sheetal
Chaudhary Pradhan, ASJ- (POCSO), South, Saket Courts, New
Delhi. The counsel for the applicant submitted that the applicant is
languishing in jail since 20.05.2022 and it is more than one and half
year. The applicant is in his youth and is of 19 years of age and is a
student of higher secondary and due to arrest and custody in this
case, he could not appear in the board examination of class twelve
last year as well as this year. There is no involvement of the
applicant in any other case. The charges have already been framed
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 6
and therefore there is no chance of tampering the evidence. The case
is pending before the trial court and is at the stage of prosecution
evidence and it would take considerable time to conclude. The
counsel placed his reliance on the judgement titled as Kashmira
Singh V State of Madhya Pradesh 1952 AIR 159. It is prayed by
the counsel for the applicant that in these circumstances the present
bail application be allowed.
7. The counsel for respondent no.2/ victim submitted that present
case involves serious offence of rape being committed upon a minor
girl aged 13 years. The victim was assaulted, physically and
mentally, intoxicated with drugs and alcohol and sexually abused by
the applicant and other co-accused who took the victim away for a
span of 8 long days from 24.04.2022 to 02.05.2022. The counsel for
respondent no.2 further relied on the judgment titled as State of
Himachal Pradesh V Asha Ram, 2005 (13) SCC 766. He further
stated that there is inconsistency and contradiction in the evidence of
alibi led by the applicant, since as per the Status Report, the Mobile
No.8800850603 which was being used by the applicant actually
belonged to one Sunny who is the real brother of the
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 7
applicant/Accused. The CDR and CAF report for the period between
25.04.2022 to 02.05.2023 of the said Mobile No. shows location of
Delhi for the aforesaid duration. The victim went missing from
24.04.2022 and was recovered only on 02.05.2022, thus this negates
the plea of alibi. The victim in her statements under sections 161 and
164 Cr.P.C stated that she was compelled to take substances like
drugs and alcohol made her unconscious multiple times and this led
to her inability to recognize the applicant during the TIP. The
counsel relied on the judgment titled as Prakash Prakash V State of
Karnataka, (2014) 12 SCC 133. The counsel while placing reliance
on judgment titled as Naveen V State of Haryana decided by High
Court of Punjab &Haryana in CRM-M-14491-2020 stated that
merely because the DNA report does not match with that of the
applicant, it cannot be concluded that the applicant is not involved in
the crime. It is prayed that in these circumstances, the present bail
application be dismissed.
8. The Additional Public Prosecutor for respondent no.1/Sate
stated that in their disclosure statements, the accused persons
admitted that they have committed the crime. He also referred to the
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 8
Status Report wherein it is stated that during 25.04.2022 to
02.05.2022 as per the CDR the applicant was in Delhi. The
Additional Public Prosecutor further stated that the allegations are
serious in nature and the present bail application is liable to be
dismissed.
9. The applicant is stated to be in judicial custody since
21.05.2022. The victim could not identify the applicant during the
TIP. The applicant/accused is neither named in the statement under
section 161 Cr.P.C. nor in the statement under section 164 Cr.P.C. by
the victim. The applicant was implicated in the present case merely
on the basis of the disclosure statement made by other co-accused.
10. The other two similarly place co-accused namely, Md. Kaif @
Anna S/o Israil and Akash @ Pramod @ Kabbaddi S/o Sh. Mohar
who could not be identified by the victim have already been granted
bail vide orders dated 17.11.2023 in SC No. 273 of 2022 and
06.10.2023 in SC No. 738 of 2018 respectively by the court of Ms.
Sheetal Chaudhary Pradhan, ASJ- (POCSO), South, Saket Courts,
New Delhi. After considering all facts, the applicant is admitted to
regular bail on furnishing personal bond in the sum of Rs.25,000/-
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 9
with one local surety of the like amount to the satisfaction of the
concerned trial court on the following condition:-
(i) The applicant shall not indulge in any criminal
activity after release from the jail in future;
(ii) The applicant shall not tamper with the evidence or
extend any threat to the witnesses
(iii)The applicant shall participate in the trial as and
when directed by the trial court unless and until his
personal appearance is exempted by the trial court.
(iv) The applicant shall not try to contact any of the
prosecution witness.
(v) The applicant shall also mark his presence before
the concerned Police Station on every 2nd and 4th Friday
of each English Calendar month till the conclusion of
the trial.
11. In view of the above, the present bail application stands
disposed of.
12. A copy of this order be sent to the concerned Jail
Superintendent for information and compliance, and be also sent to
concerned Trial Court for information.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JANUARY 11, 2024
j/sd
Signing Date:12.01.2024 BAIL APPLN. 3102/2022 Page 10
