Sulaiman Ahmadi Through Pairokar … vs State on 21 September, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 01.09.2017
Judgment pronounced on: 21.09.2017
+ BAIL APPLN. 1380/2017
SULAIMAN AHMADI THROUGH
PAIROKAR POORVI SINGH …. Petitioner
Through: Mr.M.N. Dudeja, Advocate with
Mr.Anuj Chauhan, Advocate.

versus

STATE ….. Respondent
Through: Mr.Tarang Srivastava, APP for
State with W/SI Usha Yadav, PS Safdarjung
Enclave, Delhi.
Mr.Shrey Mehta, Advocate for Complainant
along with complainant in person.

CORAM:
HON’BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.

1. The petitioner seeks his release on bail under Section 439 of the
Code of Criminal Procedure, 1973 (in short ‘Cr.PC’) in a case
registered against him and Tawab Ahmad @ Saleem vide FIR
No.0012/2017 dated 12.01.2017, Police Station Safdarjung
Enclave, South District, Delhi, under Sections 376/34 of Indian
Penal Code, 1860 (in short ‘IPC’) on the complaint of prosecutrix
“M”.

Bail Application No. 1380/2017 Page 1 of 14

2. Learned counsel for the petitioner submitted that as per the report
of the FSL, semen found on the undergarment of the prosecutrix
does not match with the blood of the petitioner and co-accused.
He submitted that the statement of the prosecutrix has not been
consistent and does not inspire confidence. He submitted that the
prosecutrix had willfully joined the bonfire party where
admittedly the petitioner was present.

3. He submitted that the petitioner even did not touch the
prosecutrix and the entire story against the petitioner is false and
baseless. He submitted that the petitioner was in close company
of his fiancée Ms.Poorvi Singh from previous night till 8:30 AM
on 12th January, 2017 and therefore, there was no occasion for the
petitioner of raping or even attempting to rape the prosecutrix.
He submitted that the allegation of the prosecutrix that on 12th
January, 2017 when she woke up early in the morning she found
that the petitioner and co-accused Tawab Ahmad @ Saleem had
raped her cannot be believed.

4. He submitted that prosecutrix had refused her internal medical
examination and as per MLC no injuries were found on her
person. He submitted that the IO has not recorded the statement
of eye-witness Ms.Poorvi Singh, who is fiancée of the petitioner,
and was present at the spot throughout. He submitted that simply
because the petitioner is a foreigner, being a citizen of
Afghanistan, and staying in India under proper refugee visa for

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last 10 years, he cannot be denied bail. He submitted that the
petitioner has been in judicial custody since 12th January, 2017.
He submitted that the allegations had been levelled against the
petitioner to settle some ulterior motive/object or extortion. He
submitted that the petitioner, having accepted the invitation of his
friend Sahil, joined his company along with his fiancée
Ms.Poorvi Singh at 11:00 PM on 11th January, 2017 at K-36,
Second Floor, Green Park, New Delhi. When the petitioner,
Ms.Poorvi Singh and Sahil were enjoying the bonfire, the co-
accused Tawab Ahmad @ Saleem with two girls including
prosecutrix “M” and one Ms.Saraswati Ingle came there in the
midnight (i.e. at 12:00 AM). After some time accused Tawab
Ahmad @ Saleem along with prosecutrix “M” and Ms.Saraswati
Ingle left the place on the request of the prosecutrix but after
some time prosecutrix and accused Tawab Ahmad @ Saleem
again arrived at about 2:30 AM on 12th January, 2017. He
submitted that at about 2:40 AM on 12th January, 2017, the
petitioner and his fiancée Ms.Poorvi Singh requested the
prosecutrix to leave the place as it was too late but the
prosecutrix, while flashing her uncontrolled behavior under the
influence of liquor, did not allow them to leave.

5. He submitted that the petitioner has been falsely implicated in the
case just to harass him. He cited a judgment of this court in
Sameer v. State of NCT, 2005 (1) JCC 336, wherein a single

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Bench of this Court granted bail to the accused under Section 439
Cr.PC as the blood group of the accused did not match with that
of the prosecutrix.

6. He had relied upon a judgment of the Apex Court deciding an
Appeal in the case of Santosh Kumar v. State, 2010 (9) SCC
747 in which the Apex Court had partly accepted the appeal
against the judgment of the High Court and commuted the death
sentence into life imprisonment under Section 302 IPC. While
adjudicating the appeal, the Apex Court observed that the trial
court was not justified in rejecting the DNA report as nothing
adverse could be pointed out.

7. He had relied upon a judgment of the Single Bench of this Court
in Manoj Kumar v. State, 2016 (2) JCC 1251, wherein this
Court while deciding an appeal had set aside the conviction of the
appellant No.1 and observed that the version of the prosecutrix
that she was made pregnant by appellant No.1 because of rape
committed upon her stood belied by DNA report.

8. He had also relied upon another judgment of the Single Bench of
this Court in Amit v. State, 2015 (6) AD (Delhi) 608, wherein
the conviction of the appellant was set aside in appeal finding
that the testimony of the prosecutrix was wholly unreliable due to
inherent infirmities.

Bail Application No. 1380/2017 Page 4 of 14

9. To buttress his argument, he had also relied upon a judgment of
the Single Bench of Gujarat High Court in Kamlesh Mansing
Ganag v. State of Gujrat, in Crl.Misc. Application (for
Regular Bail) No.581/2017, decided on 6th February, 2017,
granting bail to the accused when the DNA report did not support
the case of the prosecution. He had also relied upon a judgment
of the Single Bench of this Court in Narender @ Nikhil v. State,
Crl.Appeal 694/2014, decided on 4th May, 2016. He had also
referred two judgments of this Court in Lambert v.
Enforcement Directorate, 2000 Crl.LJ 2125, and Jagdish
Nautiyal v. State, Bail Application No.1317/2012, decided on
29th November, 2012.

10. Per contra, the learned APP for the State had vehemently
opposed the bail application of the petitioner. He submitted that
the prosecutrix, a student, along with her friend had gone to Hauz
Khas Village at about 10:30 PM on 11th January, 2017 where she
met a person, who had introduced himself as Saleem (@ Tawab
Ahmad) to her. Mr.Saleem offered and suggested them to join
him at a bonfire party at his friend’s flat at Green Park where
many boys and girls were present and she would feel
comfortable. The complainant and her friend enjoyed the bonfire
party and after sometime, the co-accused Saleem (@ Tawab
Ahmad) went to drop the complainant and her friend at JNU
Campus. After dropping her friend, on several requests of the co-

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accused Saleem @ Tawab Ahmad, the complainant came back
with him at the same place to continue to join the bonfire party
where three boys namely the petitioner, Mr.Sahil and
Mr.Sidhhant and fiancée of petitioner namely Ms.Poorvi Singh
were found present. They remained in the party till 3:00 AM.
The prosecutrix had also taken liquor in the party with all of them
and then she went to sleep in a separate bed-room at the
premises. When she woke up at about 6:00 AM and was in a
semi-conscious condition, she found Saleem @ Tawab Ahmad
had raped her forcibly and without her consent. After he left, the
petitioner came inside the room and raped her again forcibly and
she pushed him away. The prosecutrix was crying and shouting
at the top of her voice. Mr.Sidhhant, who was present there,
dropped her in the hostel of JNU and she narrated the entire
episode to her friends Ms.Disha and Ms.Geeta who brought her
to the Police Station.

11. He submitted that the prosecutrix was taken to Safdarjung
Hospital where she was medically examined. Learned APP for
the State pointed out that semen was found on her undergarment.
He pointed out the copy of the MLC where there is a mention of
slight vaginal bleeding. He submitted that the entire factual
position of her attending the party and commission of rape by the
petitioner and co-accused Tawab Ahmad @ Saleem was narrated
by the prosecutrix to the Medical Officer which is found recorded

Bail Application No. 1380/2017 Page 6 of 14
in the MLC and medical examination report. He submitted that
after investigation, charge sheet under Section 376D/506/34 IPC
was filed against the petitioner and his co-accused Tawab Ahmad
@ Saleem. He submitted that after framing of the charge by the
learned Additional Sessions Judge, the testimony of the
prosecutrix has been examined out of 12 prosecution witnesses.
He submitted that prosecutrix has fully supported the case of the
prosecution and nothing material could come out in her cross-
examination which could help the petitioner.

12. He further submitted that the petitioner is an Afghan national and
in case he is released on bail, there is every chance of his fleeing
from the justice. He further submitted that vital witnesses
including Sidhhant and Sahil, who were at the spot, are yet to be
examined and Sidhhant had seen the petitioner and his co-
accused entering into the bedroom of the prosecutrix where she
was sleeping alone.

13. He had also relied upon a judgment of the Hon’ble Supreme
Court in Madan Lal v. State of JK, AIR 1998 SC 386,
wherein on chemical analysis semen was found on the salwar of
the prosecutrix and the Hon’ble Supreme Court while deciding
the appeal has held that even if it has not been established to be
the semen of the accused, the statement of the mother of the
prosecutrix to the effect that prosecutrix narrated the entire
episode immediately when she arrived at home can also be held

Bail Application No. 1380/2017 Page 7 of 14
to be a corroborative piece of evidence which the learned
Sessions Judge excluded from consideration erroneously and the
appeal of the convict was dismissed.

14. He submitted that the statement of the expert from Forensic
Science Laboratory is yet to be recorded by the prosecution in the
Court and he submitted that it is a gang rape and the prosecutrix
was raped by the petitioner and his co-accused Tawab Ahmad @
Saleem. He argued that in case the semen of one accused gets in
touch with the semen of the co-accused, it gets contaminated and
it is only the expert who shall be able to give his opinion of its
effect when he will come into the witness box. He also argued
that as per medical text books on the subject the sample of semen
gets contaminated even by sneezing, coughing or at the time of
taking over the samples without using the gloves.

15. He cited a judgment of the Apex Court in an appeal being
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983
SC 484, wherein the Hon’ble Supreme court has held that
testimony of the eye-witness cannot be discarded if it was
otherwise satisfactory on the simple ground that the medical
evidence was in conflict with the testimony of the witnesses.

16. He has relied upon a judgment of the Apex Court in an appeal
being State of Maharashtra v. Chandraprakash Kewakhand
Jain, AIR 1990 SC 658, wherein the semen of the prosecutrix

Bail Application No. 1380/2017 Page 8 of 14
was found dissimilar with that of the accused and the Apex Court
held that it cannot cast doubts on the creditworthiness of the
prosecutrix.

17. I have heard the learned counsel for the petitioner and learned
APP for the State.

18. The principles for considering the bail under Section 439 of
Cr.PC have been laid down by the Hon’ble Supreme Court in
Prasanta Kumar Sarkar Vs. Ashish Chatterjee and Another,
(2010) 14 SCC 496 and Para 9 and 10 of the judgment reads as
under: –

“9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does not,
normally, interfere with an order passed by the High
Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously and strictly
in compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is
well settled that, among other circumstances, the factors
to be borne in mind while considering an application for
bail are:

(i) whether there is any prima facie or reasonable
ground to believe that the accused had
committed the offence;

(ii) nature of gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behavior, means, position and
standing of the accused;

Bail Application No. 1380/2017 Page 9 of 14

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses
being influenced; and

(viii) danger, of course, of justice being thwarted by
grant of bail.

10. It is manifest that if the High Court does not advert
to these relevant considerations and mechanically grants
bail, the said order would suffer from the vice of non-
application of mind, rendering it to be illegal. In
Masroor, a Division Bench of this Court, of which one
of us (D.K. Jain, J.) was a member, observed as
follows:-

“13. …… Though at the stage of granting bail
an elaborate examination of evidence and detailed
reasons touching the merit of the case, which may
prejudice the accused, should be avoided, but there is
a need to indicate in such order reasons for prima
facie concluding why bail was being granted
particularly where the accused is charged of having
committed a serious offence.”

19. The Apex Court had elaborated the principles for considering the
bail application in its another judgment Dipak
Shubhashchandra Mehta Vs. Central Bureau of Investigation
and Another, (2012) 4 SCC 134 and Para 32 of the judgment
reads as under: –

32. The court granting bail should exercise its discretion
in a judicious manner and not as a matter of course.
Though at the stage of granting bail, a detailed
examination of evidence and elaborate
documentation of the merits of the case need not be
undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being
granted, particularly, where the accused is charged of

Bail Application No. 1380/2017 Page 10 of 14
having committed a serious offence. The court granting
bail has to consider, among other circumstances, the
factors such as (a) the nature of accusation and
severity of punishment in case of conviction and the
nature of supporting evidence; (b) reasonable
apprehension of tampering with the witness or
apprehension of threat to the complainant; and (c)
prima facie satisfaction of the court in support of the
charge. In addition to the same, the court while
considering a petition for grant of bail in a non-bailable
offence, apart from the seriousness of the offence,
likelihood of the accused fleeing from justice and
tampering with the prosecution witnesses, have to be
noted.

20. Learned counsel for the petitioner had vehemently argued that the
testimony of the prosecutrix has not been consistent and she had
improved her version when examined by the Trial Court.
Surprisingly, learned counsel for the petitioner, though having
placed on record the copy of the testimony of the prosecutrix, did
not refer to any part of it during the course of arguments.
Learned APP strongly disputed the statement of the learned
counsel for the petitioner and argued that the testimony of the
prosecutrix has throughout been consistent and despite brutal
examination of the prosecutrix, the petitioner and his co-accused
could not cause any dent in her deposition. Be that as it may,
while considering bail under Section 439 of the Cr.PC, this Court
is not supposed to evaluate the evidence of the prosecutrix when
the petitioner and his co-accused are charged of having
committed a serious offence of rape on a girl of young age as

Bail Application No. 1380/2017 Page 11 of 14
held by the Hon’ble Supreme Court in Prasanta Kumar
Sarkar (supra) and Dipak Shubhashchandra Mehta (supra).

21. The argument of the learned counsel for the petitioner that the
prosecution has not recorded the statement of Ms.Poorvi Singh,
who remained present in the party attended by the prosecutrix,
the petitioner and his co-accused, is not a ground worth
considering bail. However, it is not out of place to mention that
Ms.Poorvi Singh is admittedly the fiancée of the petitioner; the
present petition is filed by the petitioner through Pairokar
Ms.Poorvi Singh and even during the course of arguments, she
remained present throughout with the learned counsel for the
petitioner.

22. There is no force in the arguments of the learned counsel for the
petitioner that since the DNA test of the semen which was found
available on her undergarment is found to be dissimilar by the
FSL with the blood of the petitioner and his co-accused and
solely on this ground, the petitioner should be given the benefit
of bail. It is trite that the medical evidence is a corroborative
piece of evidence but where medical evidence does not support
the otherwise clinching and trustworthy ocular evidence of any
material witness, then the testimony of such ocular evidence shall
prevail on the medical opinion and not vice versa. This is so held
by a Division Bench of this Court in Lokesh Mishra vs. State of
NCT of Delhi, Manu/DE/0658/2014. The Hon’ble Supreme

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Court in the case of Ranjit Hazarika v. State of Assam, (1998)
8 SCC 635, where the opinion of the Doctor was that no rape
appeared to have been committed because of the absence of
rupture of hymen and injuries on the private part of the
prosecutrix, held that the medical opinion cannot throw
overboard an otherwise cogent and trustworthy evidence of the
prosecutrix.

23. Very recently also a larger Bench of three Hon’ble Judges of the
Supreme Court in the case of Sunil v. State of Madhya
Pradesh, (2017) 4 SCC 393, has held that a positive result of the
DNA test would constitute clinching evidence against the
accused if, however, the result of the test is in the negative, i.e.
favouring the accused or if DNA profiling had not been done in a
given case, the weight of the other materials and evidence on
record will still has to be considered. Similar view was taken by
the Apex Court in the case Madan Lal v. State of JK (supra)
relied upon by the learned APP for the State.

24. So far as the DNA report is concerned, in (i) Ranjit Hazarika
(supra) (ii) Sunil (supra) (iii) Madan Lal (supra) (iv) Solanki
Chimanbhai Ukabhai (supra) (v) Chandraprakash
Kewakhand Jain (supra), the Hon’ble Supreme Court of
India has held that the ocular testimony of the prosecutrix or the
evidence of the person to whom the prosecutrix immediately

Bail Application No. 1380/2017 Page 13 of 14
narrated the incident or testimony of any other material witness
shall be considered and prevail over the medical/FSL report.

25. Hence, in view of the facts and circumstances of the case,
looking into (i) the serious nature of the accusation, (ii) severity
of punishment in case of conviction which can be awarded up to
life, (iii) every likelihood of the petitioner, an Afgan national,
absconding or fleeing from justice, (iv) the fact that the material
witnesses including persons, who were at the spot and to whom
episode was narrated by the prosecutrix soon after the incident,
are yet to be examined, (v) reasonable apprehension of petitioner
tampering with or winning over the vital witnesses, the petitioner
has no ground in his favour for grant of bail. As such, the
application for bail under Section 439 of the Cr.PC is dismissed.
Nothing stated in this order shall tantamount to any expression of
opinion on the merits of the case.

(VINOD GOEL)
JUDGE
SEPTEMBER 21, 2017

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