2021 Supreme(Del) 310
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBRAMONIUM PRASAD, J.
IN THE MATTER OF: Divakar Choudhary - Appellant
Versus
State Of NCT of Delhi - Respondent
Bail Appln. 539 of 2021, Crl.M. (Bail) 170 of 2021
Decided on : 01-06-2021
Advocate Appeared:
For the Appellant :Ms. Tanya Agarwal and Mr. Kamlesh Kumar Mishra, Advocates
For the Respondent:Ms. Kusum Dhalla, Ms. Rakhi Dubey, Advocate
Point of Law: Rape case – Gran of Bail - Consent of prosecutrix – Issues to be decided at Trial – No criminal antecedents of accused
Headnote:
Criminal Procedure Code, 1973 - Section 438 – Penal Code, 1860 - Sections 376/323/509/34 – Offence of Rape – Bail application – Fake marriage – Promise of marriage – Consent of prosecutrix
Finding of the Court:
Issues whether there was a promise to marry? Whether the petitioner put vermillion on the forehead of the prosecutrix? Whether the petitioner’s parents had agreed for the marriage or not? Whether the prosecutrix believed that she and the accused had in fact married? Whether the prosecutrix, who is a graduate, had no reasons to believe that she had married the petitioner? Whether the petitioner had any intention not to marry the prosecutrix right from the beginning i.e. to be decided by trial court - petitioner herein has no criminal antecedents. Investigation in the matter is more or less complete, statements of the parents of the prosecutrix and the parents of the petitioner have been recorded under Section 161 Cr.P.C. Mobile phone of the prosecutrix and the petitioner are already in the custody of the Police. Nothing is left to be recovered from the petitioner therefore no purpose would be served in taking the petitioner in custody
Result: Bail application allowed
JUDGMENT :
SUBRAMONIUM PRASAD, J.
1. This petition under Section 438 Cr.P.C is for grant of bail to the petitioner in the event of arrest in FIR No. 836/2020 dated 17.12.2020, registered at Police Station Samaypur Badli, Delhi for offences under Sections 376/323/509/34 IPC.
2. The FIR has been registered on the following averments made by the prosecutrix:
a) It is stated by the prosecutrix that she was introduced to the petitioner herein in May, 2017 by her aunt and since then they were friends. It is alleged that the petitioner used to call the prosecutrix and they used to meet like normal friends. It is stated that one day in October, 2018 the petitioner called the prosecutrix to Karol Bagh, outside his office and proposed marriage to her but she refused. It is stated that dspite refusal, the prosecutrix and the petitioner used to talk regularly on phone. It is stated that during this period the petitioner told the prosecutrix that if she does not marry him, he will die. It is stated that fearing that the petitioner might kill himself the prosecutrix gave her consent to marry to the petitioner. It is stated in the complaint that on 13.04.2019, the petitioner called the prosecutrix to a Shiv temple at Siraspur by telling her that he intends to marry her. It is alleged that when the prosecutrix reached the temple there was no priest and no arrangement was made by the petitioner for the marriage. It is stated that at the temple the petitioner put vermillion on the forehead of the prosecutrix and told her that they have got married. It is stated that when the prosecutrix questioned the petitioner about the so-called marriage the petitioner told her that marriages in temples are conducted in this fashion only. It is stated that the prosecutrix took photographs of both of them but later the petitioner deleted the photographs from the phone of the prosecutrix stating that if somebody sees these photographs they would be in trouble. It is stated that the petitioner tried to establish physical relationship with the prosecutrix which she refused and despite her refusal the petitioner established physical relations with her stating that she is his wife now and it is his right to have physical relations with her. It is alleged in the complaint that the petitioner established physical relationship with the prosecutrix several times till February, 2020. It is alleged that in March, 2020 the prosecutrix asked the petitioner as to for how long will they meet like this, without the knowledge of their family members, and she asked the petitioner to tell everyone in his family about their relationship. It is stated that the petitioner refused to tell his parents about their relationship and stated that he did not have any relations with the prosecutrix and he also denied the factum of their marriage and the fact that there was any physical relationship between them. It is stated that in April, 2020 the prosecutrix revealed their relationship to the petitioner’s family members and the petitioner’s parents assured the prosecutrix that they will get them married but later on the parents of the petitioner and the petitioner went back on their words. It is stated that when the prosecutrix told the petitioner that she would register a case of rape against him if he did not marry her; she was again assured that the petitioner will marry her by 14.08.2020. It is stated that the petitioner started avoiding the prosecutrix and did not get married to her on 14.08.2020. It is further alleged that the petitioner started threatening the prosecutrix that he would implicate her in a false case. It is stated that the prosecutrix established physical relations with the petitioner herein because he promised to marry her. It is stated that the prosecutrix had not registered a case against the petitioner earlier because her parents dissuaded her from filing a complaint fearing social repercussions. It is further stated that since the petitioner has now completely gone
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