2021 Supreme(Del) 391
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBRAMONIUM PRASAD, J.
In the Matter of: Saurabh Bali – Petitioner
Versus
State – Respondent
Bail Application No. 1168 of 2021, Crl. M. (Bail) No. 369 of 2021
Decided On : 05-07-2021
Advocates:
Advocate Appeared:
For the Petitioners: Mr. N. Hariharan, Mr. Sidhart Yadav, Mr. Akshay Bhandari, Mr. Varun Deswal, Mr. Samarth Luthra, Ms. Aakriti Mittal.
For the Respondents: Ms. Kusum Dhalla, Mr. Pramod Kumar, Ms. Kanika.
Point of Law: Bail Application dismissed - Sexual offence - Absence of FSL report - It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including evidence of a doctor.
Headnote:
Criminal Procedure Code, 1973 - Sections 439, 164, 167(2), 309, 167, 173(2) - Indian Penal Code - Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E, 376/377/328/323/506 - Offence of Rape - Seeking regular bail - Whether absence of FSL report in charge-sheet would make the charge-sheet an incomplete charge-sheet or not - Prosecutrix stated she is a student and is doing graduation - She also stated she is a professional dancer - Prosecutrix petitioner, whom prosecutrix knows, gave her a call and told her to meet him said he will reconcile fight between prosecutrix and one - It is stated prosecutrix left her home on pretext of a morning walk and met petitioner who was waiting outside house of prosecutrix in his car - Petitioner asked prosecutrix to sit in car - FIR records petitioner told prosecutrix it will take some time to meet said and they should drive around - She stated petitioner was committing rape on her, abusing her and making a video of act.
Finding of the Court:
Rape is an extremely heinous offence which stipulates minimum punishment of 7 years and can go up to life - Prosecutrix has alleged she has been raped by petitioner. As stated earlier, it is not a case of promise to marry or petitioner and prosecutrix were in any kind of relationship and relationship has gone sour - Court feels petitioner is not entitled to be released on bail till prosecutrix is examined - Investigation is complete, supplementary charge-sheets have been filed - Facts and circumstances of case - Court is directed to hear arguments on charge within two months from today and if charges are framed the prosecutrix be examined within two months thereafter.
Result: Application is dismissed.
JUDGMENT :
SUBRAMONIUM PRASAD, J.
1. This is a petition under Section 439 Cr.P.C. for seeking regular bail in FIR No. 225/2020, dated 12.09.2020, registered at Police Station Deshbandhu Gupta Road, for offences under Sections 376/377/328/323/506 IPC.
2. Facts, in brief, leading to the instant petition are as under:
(a) On the complaint of the prosecutrix FIR No. 225/2020, dated 12.09.2020 was registered at Police Station Deshbandhu Gupta Road, for offences under Sections 376/377/328/ 323/506 IPC. The prosecutrix stated that she is a student and is doing graduation. She also stated that she is a professional dancer. It is stated by the prosecutrix that the petitioner, whom the prosecutrix knows, gave her a call and told her to meet him at 6:00 AM and said that he will reconcile the fight between the prosecutrix and one Chandan Chugh. It is stated that the prosecutrix left her home on the pretext of a morning walk and met the petitioner who was waiting outside the house of the prosecutrix in his car. It is stated that the petitioner asked the prosecutrix to sit in the car. The FIR records that the petitioner told the prosecutrix that it will take some time to meet the said Chandan and that they should drive around. It is stated that during this time the petitioner offered alcohol to the prosecutrix which she consumed. It is stated that they stopped at a 24 x 7 shop in Naraina and bought some chips from there and thereafter had 1-2 drinks more. It is stated that the prosecutrix do not remember anything after that. It is stated that about 8:00 AM when the prosecutrix faintly gained consciousness she found herself in the house of the petitioner. She stated that the petitioner was committing rape on her, abusing her and making a video of the act. It is stated by the prosecutrix that she was not wearing anything. It is stated that the prosecutrix was in a lot of pain. It is stated that when the prosecutrix regained consciousness she pleaded the petitioner to leave her and asked him as to why he did this to her. It is stated that the prosecutrix told the petitioner that she wanted to go home. It is stated that the mother of the prosecutrix called her and the prosecutrix informed her mother that some wrong has been done to her and asked her mother to send her father at the earliest. It is stated that at that point of time the petitioner snatched the phone from the prosecutrix and started talking to her mother. It is stated that the petitioner told the mother of the prosecutrix that the prosecutrix is tensed about something and he does not know as to what is the reason for her tension. It is stated that the mother of the prosecutrix kept on calling her again and again but the petitioner prevented the prosecutrix from answering the call. It is stated that at around 10 AM the petitioner asked the father of the prosecutrix to come near Liberty cinema. It is stated that the petitioner took some intoxicant. It is stated that the prosecutrix met her father near Liberty Cinema. It is stated that the prosecutrix went home and told everything to her family and her father gave a call to the police. The prosecutrix was then taken for a medical examination at LHMC hospital. The prosecutrix was examined vide MLC No. 3234 dated 12.09.2020. In the MLC report the doctor has mentioned “Pt was apparently well till 6 AM today morning of 12.09.20 when she went out with her friend Saurabh, whom she consider her elder brother to meet another friend Chandan. While in car, Saurabh gave her some drink (whisky) which she took. However, she felt dizzy and out of her senses after a few drinks (3) which less than her normal capacity. The patient fell unconscious after having those drinks. When, she woke up, she was at Saurabh's house in his bed room. He was continuously slapping and hitting the patient. The accused had vaginal intercourse with the patient. The patient is not aware as to how many times he had intercourse with her. Also, she is not aware of whether he ej
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