BAIL APPLN./1082/2024 of SHIVAM@SAURABH Vs THE STATE OF NCT OF DELHI & ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI

+BAIL APPLN. 1082/2024 & CRL.M.(BAIL) 1894/2024

[REDACTED]:Mr. Vivek Sood, Senior Advocatewith Mr. Jitendra Kumar Singh, Mr.ShashwatBhardwaj,Mr.SaurabhAgarwal, Mr. Raunak Gupta, Mr.Ankit Chadha, Ms. Madhavi JudeviandMr.AmitanshuSatyarthi,Advocates.Through:Mr. Vivek Sood, Senior Advocatewith Mr. Jitendra Kumar Singh, Mr.ShashwatBhardwaj,Mr.SaurabhAgarwal, Mr. Raunak Gupta, Mr.Ankit Chadha, Ms. Madhavi JudeviandMr.AmitanshuSatyarthi,Advocates.

versus

THE STATE OF NCT OF DELHI & ANR.

.....RespondentsThrough:Mr. Mukesh Kumar, APP for theState with SI Pooja PS: Mehrauli.Ms. Kamna Vohra, Mr. Ramna Vohraand Mr. Shivam Tyagi, Advocates forR-2/ Complainant.State with SI Pooja PS: Mehrauli.Ms. Kamna Vohra, Mr. Ramna Vohraand Mr. Shivam Tyagi, Advocates forR-2/ Complainant.

CORAM:HON'BLE MR. JUSTICE SANJEEV NARULAO R R22.01.2025

1.The present application has been filed under Section 439 of the Codeof Criminal Procedure, 1973[1]seeking regular bail in FIR No. 204/2021dated 28[th]March, 2021 under Section 376 of the Indian Penal Code, 1860[2]and Section 4 of the Protection of Children from Sexual Offences Act, 2012[3]registered at Police Station Mehrauli. In the chargesheet in respect of the

1 “CrPC”

2 “IPC”

3 “POCSO”

afore-noted FIR, the Applicant has been charged with Sections 376/506 ofIPC and Section 4 of POCSO.

2.The case of the prosecution, in brief, is as follows:

2.1.On 27[th]March, 2021, PCR call under DD No. 80A was received atPolice Station Mehrauli by one Ms. ‘R’ (the Complainant) alleging that herdaughter, Ms. ‘S’, aged approximately 16 years, (the Prosecutrix) has beenraped.

2.2.A day later, the Complainant arrived at the police station along withthe Prosecutrix levelling allegations of sexual assault of Ms. ‘S’. Themedical examination of Ms. ‘S’ was conducted at AIIMS Hospital whereshe and her mother, denied for internal gynaecological examination. On 28[th]March, 2021, Ms. ‘R’ filed complaint wherein she alleged that herdaughter, Ms. ‘S’ went to the vegetable market in Mehrauli where one boynamely Mr. Shivam Bhardwaj (the Applicant) runs Paan shop. She statedthat the Applicant and the Prosecutrix had been in conversation since long.She further alleged that on 4[th]/ 5[th]March, 2021, the Applicant induced herdaughter and called her in his room which is in the basement opposite of hisPaan shop and raped her. On 9[th]March, 2021, the Prosecutrix contacted theApplicant using the mobile phone of her elder daughter which was onrecording mode and her elder daughter heard that recording of aforesaidconversation. The elder daughter subsequently revealed the said recording tothe Complainant on 25[th]March, 2021. Pursuant to this, she enquired Ms. ‘S’upon which she narrated that the Applicant deceitfully took her to his roomwhere he locked the door, did not let her go and raped her. On 27[th]March,2021, the Complainant contacted the Applicant on the mobile number asprovided by Ms. ‘S’ upon which the Applicant informed that he used to sell

liquor and drugs. When the Complainant visited the Applicant, sheconfronted the Applicant as to how he knew Ms. ‘S’, upon which theApplicant pushed her and ran away. After this incident she raised PCRcall. The Complainant also clarified that she could not get medicalexamination of the Prosecutrix on 27[th]March, 2021 due to some personalreasons and the same was conducted on 28[th]March, 2021.

2.3.The Complainant further alleged that the Applicant’s mother andsister have been threatening and abusing her. On the aforesaid complaint ofMs. ‘R’, the present FIR was registered and further investigation wasconducted by PSI Jyoti.

2.4.During the course of investigation, the site plan was prepared and thestatements under Section 164 of CrPC of Ms. ‘S’ were recorded wherein shecorroborated the allegations made in the initial complaint. The Complainantwas served notice to provide the mobile phone containing the callrecording as alleged in her complaint, however, she denied to provide itciting personal reasons. The relevant documents to determine the age theProsecutrix were collected from which her date of birth was revealed to be27[th]September, 2005 i.e., she aged more than 15 years on the day of allegedincident.

2.5.The Applicant was arrested on 7[th]July, 2021 and sent to judicialcustody after conducting his potency test.

2.6.During the course of investigation, the certified CDRs and CAFs ofmobile numbers of the Applicant and the Complainant were analysed uponwhich it was revealed that there were sufficient conversations between thetwo mobile numbers.

2.7.During the course of investigation, Section 506 of IPC was invoked

against the Applicant and Section 509 of IPC was invoked against theApplicant’s mother and sister, who were also interrogated. Thereafter,chargesheet under Sections 376/506 of IPC read with Section 4 of POCSOagainst the Applicant and under Section 509 IPC against the Applicant’smother and sister was filed.

2.8.In compliance with the Trial Court’s directions, the Complainantsubmitted mobile phone, claiming that it contained the call recordingreferenced in her initial complaint. The device was subsequently sent to theFSL for examination. However, as per the FSL report, no data could beretrieved from the mobile phone. The findings of the FSL were submittedbefore the Trial Court by way of supplementary chargesheet.

3.In this background, the Applicant advances the following in supportof his request for bail:

3.1.The Applicant has been falsely implicated by the Complainant. TheApplicant and the Prosecutrix have known each other since 2021 and havemaintained regular contact during this period. The Applicant, being Hindu,and the Prosecutrix, being Muslim, faced resistance from the Complainantdue to their differing religious backgrounds. Upon becoming aware of theirrelationship, the Complainant, with the intent to harass the Applicant,deliberately lodged the present FIR.

3.2.The Complainant allegedly became aware of the alleged incident on25[th]March, 2021, nearly 20 days after the date of the purported incident.This substantial delay in reporting raises questions regarding the authenticityand credibility of the allegations.

3.3.The mobile phone presented as evidence before the Trial Court didnot contain any recording supporting the claims made by the Complainant.

The absence of such critical evidence undermines the veracity of theallegations and creates reasonable doubt about their legitimacy.

3.4.Furthermore, the Applicant contends that he and the Prosecutrixcontinued their relationship even after the alleged incident, fact supportedby the CDRs, which reveal frequent communication between the two sinceJanuary, 2021. This sequence of events is further corroborated by thesupplementary statement of the Complainant recorded under Section 161 ofthe CrPC, wherein the Complainant admitted that the phone containing thepurported recording belonged to the Complainant’s elder daughter. TheComplainant also acknowledged having deleted most of the phone’s content.

3.5.In the statement made by the Complainant before the Trial Court on1[st]August, 2022, no allegations of rape were made against the Applicant.However, during her examination-in-chief on 23[rd]February, 2024, shereiterated the accusations originally mentioned in the FIR. This significantshift in her testimony raises concerns about the consistency and reliability ofher claims.

3.6.The alleged incident reportedly occurred in crowded location that isfrequently visited by the Prosecutrix. However, no independent or publicwitnesses have been examined by the prosecution to substantiate the claims.3.7.The Applicant has no criminal antecedents and undertakes to abide bythe conditions of this Court, if bail were to be granted.

4.Per contra, Mr. Mukesh Kumar, APP for the State, and Ms. KamnaVohra, Counsel for the Prosecutrix, strongly oppose the Applicant’s requestfor bail and submits the following:

4.1.At the time of the incident, the Prosecutrix was more than 15 yearsold. During the pendency of the trial, the Complainant and the Prosecutrix

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have been subjected to threats and physical assault by the Applicant and hisfamily members. One such incident took place in the premises of the SaketCourts, at the time of recording of evidence of the Prosecutrix. TheApplicant’s family has issued threats to the Complainant, coercing them tosettle the matter and warning of severe consequences. Several complaintsregarding these incidents have been filed with the office of the concernedCommissioner of Police. Consequently, the Delhi Witness ProtectionCommittee granted protection to the Complainant and the Prosecutrix.

4.2.The statements of both the Complainant and the Prosecutrix, asrecorded during the trial, unequivocally support the prosecution’s case.These testimonies, recorded on 24[th]May, 2022 before the Trial Court, detailthe threats and intimidation faced by the Prosecutrix at the hands of theApplicant.Specifically,theProsecutrixtestifiedthattheApplicantthreatened her, warning that if she disclosed the incident, his friends wouldsubject her to similar harm. This testimony regarding the occurrence of theincident and subsequent threats remains uncontested, as there was no cross-examination challenging these critical aspects.

4.3.In light of the past instances of threats, intimidation and assault, thereis significant apprehension that granting bail to the Applicant couldjeopardize the safety and well-being of the Complainant and the Prosecutrix.The Applicant’s release might cause risk to their lives, furthercompromising their security.

5.The Court has considered the facts of the case and the contentionsadvanced by the parties. It is well-established that there are several factorsthat must be considered when evaluating bail application, includingwhether there is prima facie case or reasonable grounds to believe the

accused has committed the offence, the likelihood of the accused repeatingthe offence, the nature and seriousness of the accusation, the severity of thepotential punishment upon conviction, the risk of the accused absconding orfleeing if granted bail and the reasonable apprehension of witnesses beingintimidated by the accused.[4]In the present case, the prosecution’s casehinges primarily on the sole testimony of the Prosecutrix, without anycorroborative material such as medical or scientific evidence to substantiatethe allegations.

6.Pertinently, the investigation has been completed and chargesheet hasbeen filed and the prosecution evidence has been recorded before the TrialCourt.

7.The prosecution’s case relies on the call recording wherein theApplicant and the Prosecutrix have been found to be conversing after thealleged incident. However, the Complainant, in her supplementary statementrecorded under Section 161 of CrPC on 1[st]October, 2021, admitted that thephone containing the recording belonged to her elder daughter and that shehad deleted most of the material from the phone. This admission is furthercorroborated by the FSL analysis, which confirmed that no recoverable datawas found on the mobile phone produced before the Trial Court.

8.The allegations against the Applicant pertain to an offence of sexualassault, which carries grave legal consequences. The Applicant asserts thathe and the Prosecutrix were in known to each other, claim supported bythe CDRs, indicating consistent communication between them since 2021.Conversely, the Complainant alleges that the Applicant acted deceitfully,

4 Prasanta Kumar Sarkar v. Ashis Chatterjee & Another, (2010) 14 SCC 496

leading to the alleged incident. The Court is mindful of the sensitive natureof such allegations and the socio-religious context presented by the parties,where the Applicant is Hindu and the Prosecutrix is Muslim, which has beenalleged as source of tension. However, at this stage, these assertionsremain allegations requiring detailed factual inquiry during trial. At thisstage, the Court is required to undertake prima facie assessment and is nottasked with determining the veracity of the allegations.

9.It is also pertinent to note that there is delay of 20 days in filing theFIR. This, in the prima facie opinion of the Court, can be significant factorthat can cast doubt on the credibility of the allegations made by theComplainant. The alleged incident is said to have occurred on 4[th]/5[th]March,2021, but the FIR was registered only on 28[th]March, 2021, after PCR callwas made on 27[th]March, 2021. Moreover, on 27[th]March, 2021, when thePCR call was made, the Complainant refused to co-operate with the policein conducting the medical examination of the Prosecutrix. This refusaldelayed the examination until the following day, 28[th]March 2021. Theexplanation provided by the Complainant for this delay, stating that sheneeded to consult her mother-in-law before proceeding does not seem to bea plausible explanation, particularly in case involving such seriousallegations.10.As regards the Complainant’s allegations of criminal intimidation bythe Applicant and his family are concerned, this Court on 29[th]November,2024 has issued directions to the concerned SHO to take action on thecomplaints made by the Prosecutrix. Nonetheless, sufficient conditions canbe imposed on the grant of bail in order to mitigate any risk to the life of theComplainant and the Prosecutrix.

11.The Applicant has been in custody for more than 3 years i.e., since 7[th]July, 2021. During this time, he has been granted interim bail by this Courtand there is no material on record to suggest that the Applicant misused theliberty granted to him during this period. This compliance with bailconditions indicates that the Applicant has respected the Court’s directionsand does not pose an immediate threat to delay the trial.

12.In view of the foregoing, considering the completion of prosecutionevidence, the absence of corroborative evidence such as the alleged callrecording and the contentious issues that remain to be examined at trial, thecontinued incarceration of the Applicant is deemed unnecessary.

13.The Applicant is, therefore, directed to be released on bail onfurnishing personal bond for sum of INR 50,000/- with two sureties ofthe like amount, subject to the satisfaction of the Trial Court, on thefollowing conditions:

a.The Applicant shall not directly or indirectly make any inducement,threat or promise to any person acquainted with the facts of the case ortamper with the evidence of the case, in any manner whatsoever;

b.The Applicant shall not contact the Prosecutrix or any of her familymembers;

c.The Applicant shall under no circumstance leave the territory of DelhiNCR without the permission of the Trial Court;

d.The Applicant shall appear before the Trial Court as and whendirected;

e.The Applicant shall also report to the concerned I.O. on first Mondayof every month.

f.The Applicant shall provide the address where he would be residing

after his release and shall not change the address without informing theconcerned IO/ SHO;

g.The Applicant shall not reside within 3 Km radius of the residence ofthe Prosecutrix and shall also furnish proof of his residence to the concernedIO. The Applicant shall also not move in the vicinity of the Prosecutrix inany manner;

h.The Applicant shall, upon his release, give his mobile number to theconcerned IO/SHO and shall keep his mobile phone switched on at all times;14.In the event of there being any FIR/DD entry/complaint lodgedagainst the Applicant, it would be open to the State to seek redressal byfiling an application seeking cancellation of bail.15.It is clarified that any observations made in the present order are forthe purpose of deciding the present bail application and should not influencethe outcome of the trial and also not be taken as an expression of opinion onthe merits of the case.

16.The bail application is allowed in the afore-mentioned terms.

JANUARY 22, 2025/d.negi

SANJEEV NARULA, J