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Prashant Kumar Singh vs State (Govt. Of Nct Of Delhi) on 15 June, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

Order reserved on : 21st May, 2018
Date of decision : 15th June, 2018

BAIL APPL. 2195/2017
PRASHANT KUMAR SINGH ….. Petitioner
Through Mr. Lokesh Kumar, Adv.
versus
STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Mr. Raghuvinder Varma, APP
for State with SI Praveen
Kumar, PS Mandawali.
Mr. Ravish Roshan, Adv. for
R2.

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
ORDER

ANU MALHOTRA, J.

1. Vide the present bail application no. 2195/2017, the applicant /
petitioner seeks the grant of bail in terms of Section 439 of the
Criminal Procedure Code, 1973 in relation to the FIR No. 416/16, PS
Mandawali in relation to which he has been in judicial custody since
25.12.2016 with the allegations against him qua the alleged
commission of the offences punishable under Sections 376/420/506/34
of the Indian Penal Code, 1860 and Section 4 of the Dowry
Prohibition Act, 1961 submitting that the charge-sheet in the instant
case having already been filed and that the applicant is not required for

BAIL APPL. 2195/17 Page 1 of 26
any custodial interrogation now.

2. The present application is the second bail application filed by
the applicant / petitioner before this Court with the previous
application having been dismissed as withdrawn on 21.08.2017.
Placed on record is the copy of the order dated 21.08.2017 of the
previous Bail Application No. 549/2017 of this Court of the
applicant / petitioner, which indicates that the applicant /
petitioner had withdrawn the said application submitting to the
effect that he does not want to press the bail application „at this
stage.‟

3. Taking the said aspect into account, the present application
is held to be maintainable and has thus been taken up for
consideration.

4. The FIR in the instant case is dated 22.11.2016 lodged on the
complaint of the prosecutrix Ms. X against the applicant / petitioner
including his father and other family members i.e. 6 other persons
other than the applicant / petitioner.

5. As per the FIR, the applicant / petitioner and the prosecutrix
were in contact with each other as the applicant / petitioner used to
visit the house of her brother as he was the cousin brother of her
brother-in-law (Manoj Kumar Singh) and that in the year 2009, the
applicant / petitioner told the prosecutrix that he liked her very much
and wanted to marry her but that she told him that she could not marry
him against the wishes of her family members and suggested him to
talk to her parents, whereafter the applicant / petitioner contacted her
brother (Rajesh Kumar Singh) and informed him of his willingness to

BAIL APPL. 2195/17 Page 2 of 26
marry the prosecutrix, but the brother of the prosecutrix asked him to
first talk to his parents but the applicant / petitioner stated that his
parents would not be agreeable for the marriage that they are
expecting a huge dowry and cash in the marriage as the applicant /
petitioner at that time in the year 2009 was working in a good post and
earning more than Rs.20,000/- per month and thus the brother of the
prosecutrix had refused the proposal but even thereafter, the applicant
/ petitioner did not stop talking to the prosecutrix and forced her to
talk to him telephonically and assured him that he loved her very
much and he would persuade his family members for this marriage
and on this assurance according to the prosecutrix, he forced the
prosecutrix to have sexual relationship and he made sexual
relationship, with her against her wishes but she did not narrate about
this act of the applicant / petitioner as she was hoping that one day the
applicant / petitioner would marry her and that the applicant /
petitioner committed rape continuously with her even after performing
the engagement ceremony with her on the false promise to marry her
and that the applicant / petitioner continuously harassed her physically
and made physical relations with her against her wishes on the false
promise of marrying her and that she being a simple girl could not
smell his bad intentions and thus did not narrate about this incident to
her family members.

6. In the FIR itself, the prosecutrix stated that the applicant /
petitioner had taken her to the property No. A-62, Second Floor, North
Vindo Nagar, Mandawali, Delhi – 92 in the year 2009 and to E-1/A,
Second floor Gali No. 11, Mandawali Unchepar, Delhi in the years

BAIL APPL. 2195/17 Page 3 of 26
2012 to 2013 and to A-73, Room No. 4, Gali No. 16, Mandawali
Unchepar, Delhi – 110092 in the years 2014 to 2016 and committed
rape with her against her wishes and false assurance of marrying with
her.

7. The prosecutrix further alleged that in the month of January,
2015, some marriage proposal came to her house for her marriage and
then she asked the applicant / petitioner to talk to his parents as she
was worried that her parents could solemnize her marriage with some
third person and the applicant / petitioner assured her that she need not
worry as he would persuade his family members and the applicant /
petitioner assured her that his family members would come to her
house with the marriage proposal and that in the first week of April,
2015, the applicant / petitioner along with Mr. Gyaneshwar Prasad
Singh and Smt. Subhadra Devi his parents had come to the house of
her brother with the marriage proposal and informed them that the
applicant / petitioner wanted to marry her to which her brother told
them that earlier in the year 2009, the applicant / petitioner himself
had come with the marriage proposal but as his family were not in a
position to fulfill their expectations of dowry, the marriage had not
taken place to which the parents of the applicant / petitioner told that
they are not expecting a lot in the marriage as this will be a love cum
arranged marriage and the parents of the applicant / petitioner assured
her brother that he could spend money according to his capacity in the
marriage of the prosecutrix.

8. The prosecutrix has further stated through the FIR that after
discussion in the family, the marriage proposal of the applicant /

BAIL APPL. 2195/17 Page 4 of 26
petitioner was accepted and the engagement ceremony was performed
on 22.04.2015 at Hotel Samrat International, Patna and around 50
persons were gathered from both the sides and her family had spend
Rs.50,000/- on the booking of the venue, Rs.1,51,000/- in cash was
given to the applicant / petitioner, Rs.11,000/- each to the accused nos.
2 to 7 and Rs.1,000/- each to the family members / relatives of the
family of the said persons and apart from the same, her parents had
given a diamond ring to the applicant / petitioner worth Rs.65,000/-
and a gold ring of 7 grams worth Rs.20,000/-, a gold chan of 1.5 tola
worth Rs.40,000/-, a watch of Rs.6,000/- (make Titan), two suits of
Raymond of Rs.30,000/-, two sarees to the accused no. 3 worth
Rs.6,000/-, one gold ring to accused no. 3 worth Rs.15,000/-, one gold
ring to accused no. 2 worth Rs.15,000/- along with one Raymond Suit
worth Rs.12,000/-, four heavy sarees to accused nos. 4 5 worth
Rs.20,000/-, two pairs of ear rings worth Rs.15,000/-, two suits to the
accused no. 6 worth Rs.6,000/-, one pair of ear rings of Rs.8,000/-,
two Raymond suits to the husbands of Pallavi and Nishu worth
Rs.25,000/- and clothes to the children of Pallavi and Nishu worth
Rs.5,000/- and Rs.10,000/- was spent on sweets and fruits and thus her
parents and brother had spent Rs.6 lakhs in the engagement ceremony.

9. The prosecutrix through the FIR stated that her parents and
brother asked the accused nos. 1, 2 3 to discuss about the marriage
program and the accused nos.2 3 told them that they are not in a
hurry in fixing the marriage and they are firstly thinking to solemnize
the marriage of the applicant / petitioner after solemnization of the
marriage of their younger daughter Pooja i.e. accused no. 4 of the

BAIL APPL. 2195/17 Page 5 of 26
accused nos. 2 3, which was not opposed by the family members of
the prosecutrix as they needed time to arrange money for the
solemnization of the marriage.

10. As per the FIR on 14.03.2016 the father of the prosecutrix
expired and after performing his rites and other customs, her brother
informed the accused nos. 2 3 that now the marriage could not be
solemnized for a year in view of the customs due to the demise of her
father to which they stated that they do not have any problem as they
are looking for a good match for Pooja and only then they will
solemnize the marriage of the applicant / petitioner and they assured
her brother in a year, they will definitely solemnize the marriage of
Pooja and in the meantime her brother Rajesh Kumar Singh got sold
the property situated in Dwarka, New Delhi for arranging money and
requested the accused nos. 2 3 to fix the marriage of the applicant /
petitioner but they were adamant to first solemnize the marriage of
Pooja i.e. the sister of the appellant.

11. The prosecutrix has further stated that as per the FIR in the first
week of April, 2016, the accused nos. 1, 2 3 contacted her brother
and informed him that they had got a suitable match for Pooja but her
in-laws were demanding Rs.15 lakhs along with a luxury car and that
the said amount would be adjusted in the marriage of the applicant /
petitioner and thus her brother gave a sum of Rs.7 lakhs to the accused
nos. 1, 2 3 and stated that he could not arrange the heavy amount of
Rs.15 lakhs as now he has to keep some money for the marriage of the
prosecutrix also. It has been submitted through the FIR that there was
no marriage fixed for Pooja and that in the last week of September,

BAIL APPL. 2195/17 Page 6 of 26
2016, her brother asked as to when the marriage of the Pooja would be
fixed to which applicant / petitioner informed that the marriage of
Pooja had been cancelled as some disputes had arisen between them.

12. According to the prosecutrix from October, 2016, the applicant /
petitioner and her parents started pressurizing her and her brother to
give Rs.20 lakhs in cash in the marriage of the applicant / petitioner
and also pressurized her brother to transfer his property situated at
NOIDA in the name of the applicant / petitioner and when the
prosecutrix and her brother tried to make them understand to forgo
their demands, the applicant / petitioner threatened her and her brother
to break the proposed marriage. The applicant / petitioner further
submitted that she had learnt that the applicant / petitioner was going
to marry with some other girl on or before 25.11.2016 in District
Muzaffarpur, Bihar and was making contact with the applicant /
petitioner and his family members and relatives but none had come
forward and when her brother made calls to the applicant / petitioner
not to marry the other girl as the same could cause a loss of reputation,
dignity and monetary loss to the prosecutrix and her family members
they paid no heed to the same and did not return any article nor cash
nor jewellery that was given to the applicant and his family members.

13. The prosecutrix thus submitted through the FIR that the
applicant / petitioner and his family members have ruined and spoiled
the life, dignity, honour and reputation and of the prosecutrix and
caused mental loss to the prosecutrix and her family members and
they were also greedy for dowry. The prosecutrix further submitted to
the effect that she had no other option but to commit suicide as the

BAIL APPL. 2195/17 Page 7 of 26
applicant / petitioner had ruined her life and destroyed her dreams by
not solemnizing the marriage with her just because of no fulfillment of
their dowry demands and high expectations and sought that the
applicant / petitioner be incarcerated.

14. The statement of the prosecutrix under Section 164 of the Code
of Criminal Procedure, 1973 indicated to have been recorded on
24.11.2016, indicates that the prosecutrix was a graduate and had done
B.Com and that she was aged 29 years at the time of the recording of
her statement and she stated to the effect that she came to Delhi in the
year 2009 and lived with her brother where her sister’s husband’s
cousin brother i.e. the applicant / petitioner used to come there and had
proposed to her and told the prosecutrix that he liked her very much
and wanted to marry her but that his family members would not agree
and would also demand dowry and that the applicant / petitioner stated
that the marriage could not take place without the consent of the
family members of the applicant / petitioner but despite the same, the
conversations between the applicant / petitioner and the prosecutrix
continued as the applicant / petitioner had stated that he would
persuade his family members for this marriage.

15. As per the statement dated 24.11.2016 of the prosecutrix under
Section 164 of the Code of Criminal Procedure, 1973 on 22.10.2009,
the applicant / petitioner had taken her to his house where he had
forcibly made physical relations with her and when she started crying,
he told her that he would marry her and he had told her that whether
they had sexual relations before or after the marriage the same made
no difference and she had agreed to this whereafter they had sexual

BAIL APPL. 2195/17 Page 8 of 26
relations several times because according to the prosecutrix the
applicant / petitioner continuously repeated that he would marry her
and in the month of April, 2015, his family members also came to talk
about the marriage and they got engaged on 22.04.2015 at Patna and
that the marriage date was fixed for about a year but in March, 2016
the father of the prosecutrix expired and the marriage got postponed
for a year and that some days before she had learnt that the applicant /
petitioner was to get married on 25.11.2016 with some other girl and
the prosecutrix stated that her brother had given a sum of Rs.7 lakhs
also for the marriage of the Pooja, sister of the applicant / petitioner
which was to be adjusted in her own marriage and that the applicant /
petitioner had cheated her and was marrying someone else and had
ruined her life also.

16. Notice of the application was issued to the State.

17. A status report dated 28.01.2018 was submitted by the State
under the signatures of Inspector Subhash Chandra, SHO PS
Mandawali, Delhi which indicates that the prosecutrix had declined
her internal examination during the course of the investigation and that
the applicant / petitioner was arrested on 25.12.2016 from Bihar and
despite the grant of police custody remand for recovery of dowry
articles, no dowry items could be recovered and that all other accused
persons named in the FIR i.e. Gyaneshwar Prasad Singh, Subhadra
Devi, Ms. Palliv w/o Sh. Sanjeev Kumar Singh, Nishu w/o Sh.
Abhishek Singh, Ms. Pooja d/o Gyaneshwar Prasad Singh, Abhishek
Singh (husband of Nishu) have been granted anticipatory bail by the
Court of the learned ASJ, Karkardooma Courts, Delhi but the bail

BAIL APPL. 2195/17 Page 9 of 26
application of the applicant / petitioner was declined and that the
charge-sheet in the instant case after completion of investigation
against the applicant / petitioner under Sections 376/420/506/34 of the
Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act,
1961 was submitted on 04.02.2017 and that the matter at that time was
pending for consideration of charge.

18. On the date 11.12.2017, the State submitted that there was no
compliance by the petitioner on directions qua the proceedings dated
27.03.2017 in Bail Application No. 549/2017 qua which it was
submitted on behalf of the applicant / petitioner that there was no
direction for any deposit of any amount and that vide proceedings
dated 21.08.2017, the said bail application has already been
withdrawn.

19. Vide order dated 11.12.2017, it was observed to the effect that
without any observation on the merits or demerits of the case, taking
into account the statement made on behalf of the applicant that the
applicant would still be willing to deposit the expenses incurred by the
complainant, in the event of her production of bills in relation to the
engagement of the complainant with the petitioner qua which it is
submitted by the learned counsel for the complainant that the bills are
in the possession of the complainant, copies of the said bills were
directed to be supplied to the investigating agency and were directed
to be supplied to the applicant as well and to be placed on the record
and the verification report of the said bills placed on record being
called for from the Investigating Agency.

20. The said verification report was submitted by the State through

BAIL APPL. 2195/17 Page 10 of 26
the status report dated 28.01.2018 and the status report dated
16.04.2018 filed is to similar effect to report that qua the articles of the
gold, the amount of the bills had been verified to be to the tune of
Rs.15,400/- qua bill dated 18.04.2015 and to the bill to the tune of
Rs.81,567/- dated 06.05.2012for the ear ring and 2 finger rings for the
sister-in-law of the complainant and Rs.85,715 dated 03.011.2010 for
2 chains in the name of sister-in-law of the complainant.

21. The said status report also stated that the prosecutrix also
supplied the passbook copy showing withdrawal of the money but the
specific withdrawal entries were not specified which were made to
arrange the dowry nor the specific dates on which the dowry was
given to the accused persons, though the prosecutrix had supplied the
copy of the sale deed dated 18.06.2016 of the land of Village
Sukhasan, Madhepura, Bihar which was sold by her brother and the
copies of the bank account statements of her mother and sister-in-law
were supplied by the complainant.

22. Through the written submissions that have been made on behalf
of the applicant / petitioner, it has been submitted that the applicant /
petitioner has clean antecedents and that the jail conduct of the
applicant / petitioner is satisfactory and he has been awarded a
certificate of good conduct and hard work and that there is a delay of
seven years in the registration of the FIR and that the MLC bearing no.
055 dated 22.11.2016 of the examination of the prosecutrix at Lal
Bahadur Sahastri Hospital, Khichripur, Delhi is to the effect : –

“Victim (Rashmi) giving H/o knowing the accused – Prashant
Singh since 2009 (family friend), after which they developed

BAIL APPL. 2195/17 Page 11 of 26
friendship committed to many each other. They have first
consumed intercourse on 22nd Oct., 2009 and then had regular
intercourse after that. They got engaged on 22nd April, 2015.
Pt got preg in Aug., 2014 after which the boy gave her
abortifacient pills. (UPT + Ve at home).

Pt had last intercourse in Jan., 2016. Now the guy has refused
to marry her, she has lodged complaint against him.”

and thus it has been submitted on behalf of the applicant / petitioner
that the prosecutrix herself admitted to consensual intercourse on
22.10.2009 and to regular intercourse thereafter.

23. The applicant / petitioner has further submitted that there are
major contradictions in the statement of the prosecutrix and her
statements under Section 161 and 164 of the Code of Criminal
Procedure, 1973 and in the history on the MLC, that the statement of
the house owner namely Ramesh Gupta s/o Sh. Shanker Lal Gupta r/o
F-13, Gali no. 11, Vinod Nagar, Delhi was contrary to the allegations
of the prosecutrix and that no bills were furnished in support of the
demand of dowry by the complainant during the investigation and not
even when called by the Investigation Officer and not even before this
Court and that the status report submitted was contrary to the version
of the prosecutrix. The applicant / petitioner further submits that the
prosecutrix was aged 30 years, highly qualified being a graduate and
working and was able to understand what is good and what is bad and
also the consequences of premarital sex and that her statement under
Section 161 of the Code of Criminal Procedure, 1973 also indicates
that her first physical relations with the applicant / petitioner were on
22.10.2009 when initially there was no terms to marry and thus it was

BAIL APPL. 2195/17 Page 12 of 26
not a case of rape and that even after that her family members had
refused for the marriage but even thereafter the prosecutrix and the
applicant / petitioner continued to have physical relations and that she
was a consenting party. The applicant / petitioner further submits that
release on bail is the rule and that he is only the bread earner of his
entire family and that the physical relations between the prosecutrix
and the applicant / petitioner have been consensual and as to whether
it was a marriage or a live in relationship, can only be established
through trial but does not suffice to further incarcerate the applicant /
petitioner in custody. It has been submitted on behalf of the applicant /
petitioner that he has to be presumed to be innocent till proved guilty
and that proving his guilt lay on the prosecution.

24. Reliance was inter alia placed on behalf of the applicant /
petitioner on a catena of verdicts in support of his contentions i.e. on
the verdict of Jagdish Nautiyal Vs. State 2013 (1) JCC 311 in which
case the accused was granted anticipatory bail subject to conditions
observing to the effect that where there was no custodial interrogation
required and there was no prima facie evidence to show that the
prosecutrix had not been threatened by the accused in any manner, it
was the totality of the circumstances which had to be seen in as much
as the aspect of the alleged sexual abuse of the prosecutrix under the
guise of the co-called marriage or promise to marry can only be
ascertained through trial and does not require any custodial
interrogation nor any recovery.

25. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of Rohit Chauhan Vs. State of NCT of Delhi 200

BAIL APPL. 2195/17 Page 13 of 26
(2013) DLT 380 in which case the prosecutrix had alleged to have had
physical relations with the applicant / petitioner for more that 2-½
years whereafter it was alleged that the accused had refused to marry
her and that thereafter he married her with the assistance of the police
and then allegedly raped her. The applicant therein was allowed to be
released on bail observing to the effect that each case has to be dealt
with on its factual matrix and no set principle or strait-jacket can be
applied specifically while dealing with the bail matters where only a
prima facie view can be taken to appreciate the facts in the given case
and that the accused in the said case was allowed to be released on
anticipatory bail in as much as there was a considerable delay in
lodging the FIR and it was observed to the effect that the prosecutrix
in that case had a physical relationship with the accused for more than
2-½ years and it was not just a single act but the same continued for a
period of three years and thus in a prima facie case was found to be
made out to grant anticipatory bail in the said case.

26. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Vikul Bakshi Vs. The State (NCT of
Delhi) 2016 (1) JCC 54 in which case the applicant / accused was
granted anticipatory bail in as much as the parties were acquainted
with each other before the incident, and physical relations allegedly
took place between them on the alleged promise to marry and the
prosecutrix lodged the FIR when the petitioner and his parents
declined to solemnize their marriage and there was a delay in lodging
of the FIR.

27. Reliance was also placed on behalf of the applicant / petitioner

BAIL APPL. 2195/17 Page 14 of 26
on the verdict of this Court in Rohit Kumar Tomar Vs. State Govt of
NCT Delhi, 2016 LawSuit (Del) 3540 in which case the promise to
marry did not fructify and the prosecutrix and the accused in that case
were known to each other prior to the registration of the FIR and
negotiations for the marriage between the parties did not materialize
after the roka ceremony had taken place on 14.01.2014 between the
accused and prosecutrix on that case and that on 11.10.2015 the
prosecutrix received an SMS from the petitioner expressing his
inability to marry her and thus the FIR had been registered.

28. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Vishal Grover Vs. State 2017 (91) JCC
19 in which case the applicant therein was granted anticipatory bail in
as much as the applicant was willing and ready to join the
investigation and that the prosecutrix has alleged in the FIR that for
the first time physical relations between the parties took place in
March, 2014 on her own residence and since then they were in
relationship. According to the prosecutrix, the applicant had
established physical relations on the promise of the marriage and
backed down from the same and as to whether or not there was a
promise of marriage for establishment of physical relationship was
held to be a matter of trial.

29. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Sumit Pillai Vs. The State (Govt. of
NCT) Delhi in bail application no. 2210/16 in which it was contended
that the prosecutrix had herself admitted that she was in live-in
relationship with the petitioner and the petitioner was not required for

BAIL APPL. 2195/17 Page 15 of 26
custodial investigation in which case also the applicant therein was
allowed to be released on bail.

30. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Ashu Kumar (In J.C.) Vs. State 2009
(2) JCC 1445 to contend that the prosecutrix was 25 years of age the
time of the incident and was known to the petitioner since class Xth
and attended tuitions together and that the parents of both the
prosecutrix and petitioner opposed the marriage and that the petitioner
got engaged to another girl and the offence of rape allegedly took
place on 17.03.2008 and the complaint was lodged on 21.03.2008 and
the MLC reported no fresh injury nor sign of struggle or resistance and
the FSL report gave no detection of semen on the undergarments of
both prosecutrix and petitioner which aspect was serious and which
required evidence of material witnesses. It was thus contended that the
applicant was released on bail in the said case.

31. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Pankaj Vs. State Govt. of NCT of Delhi
in bail application no. 339/2016 whereby vide order dated 08.03.2016
of this Court, it was contended that the applicant and the prosecutrix
were known to each other for the last about 10 years and that the
physical relations took place between the two on various occasions
albeit on the alleged promise to marry with the charge-sheet having
been filed and the accused in the said case was granted bail.

32. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Ashroo @ Ashar Vs. The State (Govt.
of NCT Delhi) in bail application no. 1981/2015 in which case the

BAIL APPL. 2195/17 Page 16 of 26
charge-sheet had been filed and that the parties were acquainted with
each other since long and that the physical relations took place
between them on the alleged promise to marry several time.

33. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Deepak Dua Vs. State of NCT of Delhi
Anr. in bail application no. 2369/2016 and Krishan Kumar Vs.
State (Govt. of NCT Delhi) in bail application no. 2447/2016 to
contend that there was delay in the institution of the FIR and there was
variation in the statement made for registration of the FIR and in the
statement under Section 164 of the Code of Criminal Procedure, 1973
and the statement that had been made during the course of the
investigation.

34. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Mohd. Moiz Vs. State (GNCT of Delhi)
in bail application no. 2207/2016 to submit that the charge-sheet had
been filed and that the prosecutrix and the accused were known to
each other in which the prosecutrix claimed to have entered into
physical relations with the accused on a false promise of marry and
that the expression of the conversations between the prosecutrix and
the accused in the said case also indicated that there were only
consensual relations between the prosecutrix and the accused in that
case was thus granted bail.

35. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Sandeep Kumar Vs. State (NCT of
Delhi) in bail application no. 1182/2017 dated 03.07.2017 in which
case it was submitted that the victim was a major of 36 years age and

BAIL APPL. 2195/17 Page 17 of 26
refused to undergo medical examination (Gynae) and there was
nothing to be recovered from or at the instance of the petitioner and
the petitioner therein was thus granted anticipatory bail, it having been
observed to the effect as to whether the prosecutrix was being
blackmailed by the applicant that he had made a video of the alleged
incident had to be treated on trial.

36. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Inderjeet Vs. The State Govt. of NCT
of Delhi in bail application no. 2292/16 dated 09.02.2017. Similar
submissions were raised through contentions raised in Govind Raj Vs.
The State NCT of Delhi in bail application no. 1408/2017 dated
25.07.2017 wherein the applicant was granted interim bail.

37. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in Jitender Kumar Vs. Govt. of NCT of
Delhi 2016 (2) JCC 1022 to contend that the bail cannot be withdrawn
as a punishment and even assuming that the accused is prima facie
guilty of a grave offence bail cannot be refused in terms of the process
of punishment and that there was nothing to show that the applicant
would evade from the process of law and that he ought to be released
on bail presuming his innocence.

38. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of the Hon’ble Supreme Court in Dataram Singh Vs.
State of Uttar Pradesh Anr. 2018 LawSuit (SC) 84 observing to the
effect : –

“2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is

BAIL APPL. 2195/17 Page 18 of 26
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the
fundamental postulate in respect of other offences. Yet
another important facet of our criminal jurisprudence is that
the grant of bail is the general rule and putting a person in jail
or in a prison or in a correction home (whichever expression
one may wish to use) is an exception. Unfortunately, some of
these basic principles appear to have been lost sight of with
the result that more and more persons are being incarcerated
and for longer periods. This does not do any good to our
criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely
the discretion of the judge considering a case but even so, the
exercise of judicial discretion has been circumscribed by a
large number of decisions rendered by this Court and by every
High Court in the country. Yet, occasionally there is a
necessity to introspect whether denying bail to an accused
person is the right thing to do on the facts and in the
circumstances of a case.

4………….

5………….

6………….

7. However, we should not be understood to mean that bail
should be granted in every case. The grant or refusal of bail is
entirely within the discretion of the judge hearing the matter
and though that discretion is unfettered, it must be exercised
judiciously and in a humane manner and compassionately.

Also, conditions for the grant of bail ought not to be so strict
as to be incapable of compliance, thereby making the grant of
bail illusory.”,

to contend that the applicant ought to be released on bail in the instant

BAIL APPL. 2195/17 Page 19 of 26
case.

39. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of this Court in State Vs. Sumit Kumar 2017 LawSuit
(Del) 2295 in which case it was submitted that the facts of the said
case were in ‘pari materia’ with the allegations in the instant case
against the applicant and that in that case State of Rajasthan Vs. Raja
Ram 2003 CrLJ 3901, the appeal filed by the State against acquittal of
the appellant was dismissed with it having been observed in similar
facts to the effect : –

“7. On a perusal of the entire statement of the prosecutrix, it
reveals that the prosecutrix, aged around 31 years, was well
aware as to what were the consequences of her establishing
physical relationship with the respondent. Nothing has
emerged on record to show if any time, the victim’s consent for
physical relationship was obtained by deceit or on the false
pretext to marry. During long three years, the victim did not
insist for marriage with the respondent. She did not apprise
her parents about her inclination to marry the respondent. She
did not examine any her family member to corroborate her
version if any such talks for marriage were going on between
her and the respondent or they were aware of it. The
prosecutrix did not take into confidence her parents. She did
not reveal to them if physical relationship had take place with
the respondent at any stage on the promise to marry. It has,
however, come on record that during this period victim’s
parents used to give matrimonials in the newspapers for her
marriage. The victim was aware of the matrimonials and
never asked her parents not to go for that as she was expecting
marriage with the respondent. The Trial Court has given
cogent reasons to arrive at the conclusion that at no stage, the
respondent had promised to marry the victim. Various e-mails
sent by the victim have been reproduced in the impugned
judgment. In the said e-mails at no stage, the victim insisted

BAIL APPL. 2195/17 Page 20 of 26
for her marriage with the respondent. Even in the first week of
January, 2008, when the physical relationship occurred,
initially there was no promise to marry. The Trial Court was
of the view that there was no forcible rape upon the victim.
She did not raise any alarm.

She maintained complete silence on the so called promise to
marry. After the alleged commission of rape, the victim did not
take any steps, whatsoever, to lodge complaint against the
respondent. Contrary to that, she continued to have physical
relations with the respondent at various places even at her
residence. There was no compulsion for the victim to have
physical relations with the respondent simply to get the alleged
promise to marry fulfilled. Nothing is on record to show if any
injuries, whatsoever, were found on victim’s body including
her private parts in the alleged forcible rape in the first week
of January, 2008. In her MLC no external injuries on her
body, whatsoever, were noticed. Apparently, physical
relationships between the prosecutrix and the victim (if any)
were with her consent. This relationship continued for long
three years and the victim had no complaint, whatsoever,
against the respondent’s conduct and attitude any time. Only
when the respondent attempted to keep distance from her, she
got enraged and lodged the instant complaint. She was
agitated as the respondent had decided to perform marriage
with another girl. She even approached the said girl who
appeared as defence witness as DW-2. She is Megha Kapoor
who performed marriage with the respondent after
engagement on 19.02.2011. The marriage took place on
06.11.2011. She had no complaints against the respondent.
The victim had come to her office M/s IBM at Gurgaon on 7th
or 8th September, 2011. She threatened her that she would not
allow her alliance with the respondent. DW-2 informed her
parents and in turn they talked to the parents of the
respondent. She further deposed that ‘X’ had issued similar
threats to her parents also on telephone. The victim had no
occasion to intimidate DW-2, the lady with whom the
respondent was to marry.

BAIL APPL. 2195/17 Page 21 of 26

8. The impugned judgment based upon fair appreciation of
evidence deserves no intervention. The law regarding appeals
against acquittal is well settled. Even if two views are possible,
the appellate court could not ordinarily interfere with the
judgment of acquittal. The appellate court may overrule or
disturb the Trial Court’s acquittal if it has very substantial and
compelling reasons for doing so. In the instant case, nothing
is on record to infer if the judgment recorded by the Trial
Court is perverse. Settled legal position is that conviction can
be based upon the sole testimony of the prosecutrix provided it
is reliable and is of sterling quality. The testimony should be
beyond suspect and of very high quality. A case of sexual
assault has to be proved beyond reasonable doubt as any other
case and that there is no presumption that a prosecutrix would
always tell the entire story truthfully. Though the statement of
proseuctrix must be given prime consideration, at the same
time, broad principle that the prosecution has to prove its case
beyond reasonable doubt applies equally to a case of rape. In
the instant case, the testimony of the victim is highly disputed
and unreliable. There is delay of three long years in lodging
the report with the police on the alleged promise to marry after
the so called commission of rape took place in the first week of
January, 2008. In the State of Rajasthan vs.Raja Ram 2003
CriLJ 3901 the court held:

“There is no embargo on the appellate Court reviewing the
evidence upon which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with because the
presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs
through the web of administration of justice in criminal cases
is that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the Court
is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the
guilty is no less than from the conviction of an innocent. In a
case where admissible evidence is ignored, a duty is cast upon

BAIL APPL. 2195/17 Page 22 of 26
the appellate Court to re-appreciate the evidence in a case
where the accused has been acquitted, for the purpose of
ascertaining as to whether any of the accused committed any
offence or not. [See Bhagwan Singh and Ors. v. State of
Madhya Pradesh]. The principle to be followed by appellate
Court considering the appeal against the judgment of acquittal
is to interfere only when there are compelling and substantial
reasons for doing so. If the impugned judgment is clearly
unreasonable, it is a compelling reason for interference.

9. Resultantly, the appeal filed by the State is without
substance and is dismissed.”

40. Reliance was also placed on behalf of the applicant / petitioner
on the verdict of Hon’ble Supreme Court dated 06.04.2018 in Special
Leave to Appeal (Crl.) 454/2017 in case titled as Shivashankar @
Shiva Vs. State of Karnataka Anr. vide which the appeal filed by
the applicant / petitioner against the impugned order dated 22.09.2016
of the High Court of Karnataka in Criminal Petition No. 769/2016
refusing to quash the criminal proceedings in CC No. 6820/2015
arising out of Crime No. 254/2014 for the offence punishable under
Sections 376, 420, 323 and 506 of the Indian Penal Code, 1860, was
allowed and the impugned order of the High Court of Karnataka was
set aside with the facts of the said case being to the effect that the
gravamen of the charge against the appellant accused was that he had
raped respondent no. 2 the complainant but it was found from the
complaint filed by the complainant that the respondent no. 2
complainant had lived with the appellant for a period of about eight
years and claimed that the appellant had pretended to have loved her
and on the promise of marriage, that he applied the kumkum on her

BAIL APPL. 2195/17 Page 23 of 26
forehead and tied the Arishina thread to her neck and the complainant
further stated that she has been treating the appellant as her husband
for the last eight years and now he is trying to escape from her and
cheat her with it having been observed by the Hon’ble Supreme Court
that there was no doubt in the circumstances that the complainant and
the accused had lived together as the married couple even according to
the complainant and that in the facts and circumstances of the case, it
is difficult to sustain the charges levelled against the appellant who
may have possibly, made a false promise of marriage to the
complainant and that it was observed further that “It is, however,
difficult to hold sexual intercourse in the course of a relationship
which has continued for eight years, as „rape‟ especially in the face
of the complainant‟s own allegation that they lived together as man
and wife”

41. It was thus contended on behalf of the applicant / petitioner that
the applicant / petitioner be thus released on bail, he having been in
incarceration since 25.12.2016 and till date with the charge-sheet
having been filed, investigation being complete, his conduct being
satisfactory and there being no likelihood of his evading trial and there
being no scope of his tampering with the evidence coupled with the
factum that all six other accused persons in the instant case were on
anticipatory bail.

42. The State whilst refuting the contentions raised on behalf of the
applicant / petitioner, opposed the prayer.

43. On a consideration of the rival submissions taking the delay in
registration of the FIR into account and the factum that the first sexual

BAIL APPL. 2195/17 Page 24 of 26
intercourse between the applicant / petitioner and the prosecutrix took
place on 22.10.2009 and the complainant in the FIR and in the
statement under Section 164 of the Code of Criminal Procedure, 1973
and the averments made in the MLC bearing no. 055 dated 22.11.2016
of the examination of the prosecutrix at the Lal Bahadur Sahastri
Hospital, Khichripur, Delhi and with the submissions made at the time
of the medical examination being interalia to the effect that the
relations between the applicant / petitioner and the prosecutrix were
prima facie consensual, coupled with the factum that despite the
brother of the prosecutrix having informed the applicant that the
marriage could not be solemnized without the consent of the parents
of the applicant / petitioner, sexual relations between the applicant /
petitioner and the prosecutrix continued repeatedly several times over
the period from the year 2009 to 2016, with the FIR having been got
lodged only in the year 2016 when the applicant / petitioner was to be
married on 25.11.2016, in the facts of the case in the instant case and
in view of the case law relied on behalf of the applicant / petitioner, it
is considered appropriate and in the interest of justice to release the
applicant / petitioner on bail in the instant case subject to the applicant
furnishing a personal bond in the sum of Rs.5,00,000/- with one surety
of the like amount to the satisfaction of the Trial Court and depositing
of a sum of Rs.5 lakhs in the form of an FDR with the Registrar
General of this Court in the name of the prosecutrix / complainant in
view of it having been submitted already on 11.12.2017 during the
course of the arguments in the present application that he would be
willing to deposit the expenses incurred by the complainant, in the

BAIL APPL. 2195/17 Page 25 of 26
event of her production of bills in relation to the engagement of the
complainant with the applicant / petitioner qua which it is submitted
by the learned counsel for the complainant that the bills are in
possession of the complainant, in view of the verification report on
record in relation to the gold purchased and verified and also
transaction of the money allegedly made in relation to the dowry
articles and also qua the sale of the land of Village Sukhasan,
Madhepura, Bihar belonging to the brother of the prosecutrix in the
year 2016, which FDR is directed to be placed in an auto renewal
mode, the release of which would be subject to the outcome of the trial
in the FIR No. 416/16, PS Mandawali under Sections 376/420/506/34
of the Indian Penal Code, 1860 and Section 4 of the Dowry
Prohibition Act, 1961.

44. The applicant / petitioner further shall not leave the country
without permission of the Trial Court.

45. Nothing stated hereinabove shall amount to an expression on
the merits of the case.

46. The Trial Court Record, which has been requisitioned, be
returned.

ANU MALHOTRA, J
JUNE 15th, 2018/mk

BAIL APPL. 2195/17 Page 26 of 26

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