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Sudhir Singh vs State & Anr on 26 September, 2023

$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2153/2023
SUDHIR SINGH ….. Petitioner
Through: Mr. Aditya Aggarwal Mr. Naveen
Panwar, Advocates.
versus
STATE ANR. ….. Respondents
Through: Mr. Aman Usman, APP for the State
with SI Meetu Yadav, P.S. Sangam
Vihar.
Ms. Astha, Advocate for Prosecutrix.
CORAM:
HON’BLE MR. JUSTICE AMIT SHARMA
ORDER

% 26.09.2023

1. This is the second application under Section 439 of the Cr.P.C.
seeking regular bail in case FIR No. 525/2020, under Sections
363/366/376/471/467 of the IPC and Section 6 read with 5(i) of the POCSO
Act, registered at P.S. Sangam Vihar.

2. The first bail application on behalf of the pre sent applicant was
dismissed vide order dated 14.09.2022, passed by a learned Single Judge of
this Court, in BAIL APPLN. 4357/2021, wherein it has been recorded as
under:

“2. In brief, as per the case of the prosecution, FIR was initially
registered under Section 363 IPC on the basis of statement of father of
the victim, Deen Mohammad thereby informing that his 14 years old
daughter (Ms. „NA‟) was missing. During the course of investigation,
victim „NA‟ was recovered. She stated that she is 18 years old and had
married the petitioner Sudhir Singh on 20.10.2020 at Arya Samaj
Mandir in Harsh Vihar, Ali Ganj, Lucknow, U.P. Medical examination
of „NA‟ was got conducted at AIIMS, New Delhi and her statement
was recorded under Section 164 Cr.P.C.

BAIL APPLN. 2153/2023 Page 1 of 7

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53
In her statement under Section 164 Cr.PC, NA stated that she was
assaulted and maltreated by her parents and as such she had left the
home and married Sudhir Singh on 20.10.2020.

It is further the case of the prosecution that NA/victim also provided
documents supporting that she was a major and her date of birth was
claimed as 10.07.2002. However, the documents on verification from
Higher Secondary School, Amapur, Kasganj were found to be forged.
On the other hand, the complainant provided a copy of birth certificate
of „NA‟ whereby her date of birth was reflected as 25.02.2007 and as
such she was aged about 13 years and 8 months on the date of the
alleged incident. The documents were also verified from the first
attended school of „NA‟ at Green Public School, Ganjgurdwara,
Kasganj, U.P. and were found to corroborate the date of birth of the
victim as 25.02.2007. Accordingly, Sections 366/376/420/467 IPC and
Section 6 of POCSO Act were invoked during the course of
investigation.

3. Learned counsel for the petitioner submits that the documents
regarding the age of the victim are not alleged to have been forged by
the petitioner and the age of the victim needs to be considered in the
light of her own claim to be a major. It is also urged that the statement
of the victim recorded under Section 164 Cr.PC reflects that the victim
had left the home of her own as she was maltreated by her parents.
Learned counsel for the petitioner further submits that at the time of the
marriage, the petitioner was under the impression that the victim is a
major and is aged about 18 years as claimed by her.

4. Learned APP for the State opposes the bail application and submits
that the investigation has already been conducted qua the forging of
birth certificate produced by the victim. It is also submitted that since
the victim was below 14 years of age, her consent, if any, remains
immaterial and invalid in law.

5. I have given considered thought to the contentions raised.

6. A perusal of the order dated 13.09.2020 passed by the learned Addl.
Sessions Judge reflects that the applicant/accused was aged about 32
years and was already married. It cannot be ignored that the age
documents filed on behalf of the victim claiming to be major were
found to be forged during investigation, while the actual age of the
victim on the date of the alleged incident was about 13 years and 8
months. In view of above, the consent, if any, given by the victim
remains immaterial. Considering the facts and circumstances of the
case, no grounds for bail are made out. The application is accordingly
dismissed.”

BAIL APPLN. 2153/2023 Page 2 of 7

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53

3. Learned counsel appearing on behalf of the applicant submits that
after the aforesaid order was passed, there have been some changes in
circumstances:

(i) Learned counsel for the applicant submits that the Principal, Green
Public School School, Ganjgurdwara, Kasganj, Uttar Pradesh, who has been
examined as PW-6, stated that at the time when the victim was admitted to
the school, her parents did not give any documents in support of her date of
birth, as claimed by them.

(ii) Similarly, reliance has been placed on testimony of father of the
victim, who was examined as PW-7 and also stated that at the time of his
daughter‟s admission, he did not give any documents in support of her date
of birth. It is further pointed out that the date of birth certificate collected by
the Investigating Officer, is again on the basis of a statement made by the
victim‟s father, after the registration of FIR.

(iii) The investigating Officer, who was examined as PW-8, during his
cross-examination before the learned Trial Court, has admitted the fact that
the victim had told him that she is over 18 years of age and had married the
present applicant out of her own free will.

4. Per contra learned APP for the State, assisted by learned counsel
appearing on behalf of the complainant submits that after registration of
FIR, during the course of the investigation, the Investigating Officer had
collected documents reflecting the date of birth of the victim and after due
investigation, he collected the birth certificate issued by Nagar Palika
Parishad, Ganj Dundwara, District Kasganj, Uttar Pradesh. It is recorded
that on the said birth certificate, the date of birth of the victim was reflected
as 25.02.2007. It is also corroborated by the entries in the school register. It

BAIL APPLN. 2153/2023 Page 3 of 7
This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53
is further submitted that in her testimony recorded before the learned Trial
Court, the victim has categorically deposed that she was taken by the present
applicant and he was the one who has prepared the date of birth certificate,
which was also used by the applicant in support of the writ petition filed at
his instance before the Hon‟ble High Court of Allahabad. It is also pointed
out that previous order dismissing bail, passed by the learned Single Judge
has recorded the said aspect.

5. Heard learned counsel for the parties and perused the record.

6. It is noted that the register, where the date of birth of the victim is
shown as 25.02.2007 is an entry, in the school register of Bal Vikas Vidya
Mandir, Gurgaon. The said entry was made in September/October 2018.
Similarly, transfer certificate issued by Green Public School, Ganjgurdwara,
Kasganj, Uttar Pradesh reflects that the victim got admitted to the said
school on 02.07.2013. The fact remains that the aforesaid date of birth was
given by the parents of the victim, back in 2012-2013 at the time of her
admission in the aforesaid school, as per the transfer certificate. The said
certificate was for a school in Gurgaon and the corresponding entry in the
Gurgaon School has also been made much prior to the registration of present
FIR. The said fact cannot be ignored simply because no documents were
submitted at the time the aforesaid entries were given by the parents of the
victim. It is pertinent to note that the said date of birth was given to the
school in the normal course of events, much prior to the date of registration
of the present FIR in the year 2020.

7. Learned counsel relies upon a judgment of the Hon‟ble High Court of
Madhya Pradesh at Gwalior, passed in Criminal Appeal No. 11320 of 2022,
decided on 13.01.2023.

BAIL APPLN. 2153/2023 Page 4 of 7

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53

8. The facts of the aforesaid case are distinct to the present FIR
inasmuch as in the said case, the victim had claimed herself to be 18 years of
age during her deposition at the time of trial. In the said case, it is recorded
by the Hon‟ble High Court of Madhya Pradesh that the prosecutrix had
herself admitted the fact that she is above 18 years of age and on her own
free will living with the appellant therein as wife and had been blessed with
two sons. It is recorded that the prosecution failed to prove the case beyond
reasonable doubt that the victim in the said case was less than 18 years.

9. Learned counsel for the applicant further relies on the judgment dated
18.07.2023 passed by the Hon‟ble Supreme Court in P. Yuvaprakash v.
State by Rep. Inspector of Police, in Criminal Appeal No. 1898/2023,
wherein it has been held that Section 94(2)(iii) of the Juvenile Justice (Care
and Protection of Children) Act, 2015, clearly indicates that while
determining the date of birth of a minor, date of birth certificate from the
school or matriculation or equivalent certificate issued by the concerned
examination board has to be first preferred, in the absence of the which the
birth certificate issued by the Corporation or Municipal Authority or
Panchayat has to be considered and it is only thereafter, in the absence of
such documents, the age is to be determined through an “ossification test” or
“any other latest medical age determination test” conducted on the orders on
the concerned authority, i.e., Committee or Board or Court.

10. Relying upon the aforesaid judgment, learned counsel for the
applicant submits that in the present case, no such document has been placed
on record, except the transfer certificate and the entry made in the register of
second school.

BAIL APPLN. 2153/2023 Page 5 of 7

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53

11. It is pertinent to note that the aforesaid observation made by the
Hon‟ble Supreme Court in the said judgment is with regard to an appeal
against conviction wherein again, the prosecutrix, at the time of examination
had resiled from her previous testimony under Section 164 of the Cr.P.C. as
well as the fact that ossification test in the said case showed that the victim
was between the age of 18 to 20 years.

12. In the present case, as pointed out hereinabove, the age of the victim
at the time of incident, as per the investigation, was about 13 years and 7
months. It also cannot be ignored at this stage that forged documents with
respect to date of birth were produced before the Hon‟ble High Court of
Allahabad at the time when the applicant sought protection. The said aspect
has been taken note of by the learned Single Judge of this Court while
dismissing the previous application for grant of bail.

13. As stated hereinabove, in the said order, it is recorded that at that time
the applicant was 32 years of age and was already married. If the victim was
not a minor, there was no need for furnishing documents claiming her to be
a major, while filing the petition before the Hon‟ble High Court of
Allahabad.

14. In view of the above, this Court does not find any change of
circumstances to allow the present second bail application. In view thereof,
the present application is dismissed and disposed of accordingly.

15. Pending application(s), if any, also stand disposed of.

16. Needless to state that nothing stated herein is the opinion on the
merits of the case.

17. Copy of this order be sent to concerned Jail Superintendent for
necessary information and compliance.

BAIL APPLN. 2153/2023 Page 6 of 7

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53

18. Order be uploaded on the website of this Court, forthwith.

AMIT SHARMA, J
SEPTEMBER 26, 2023/bsr

BAIL APPLN. 2153/2023 Page 7 of 7
This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/09/2023 at 00:48:53

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