Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 1967

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Sharma, J.
Vipin Singh – Appellant
Versus
State & Anr. – Respondents
Bail Appln. 1177 of 2022
Decided On : 07-02-2023

Advocates appeared:
Mr. Lav Kumar Agrawal, Mr. Gajendra Singh & Ms. Usha Garg, Advocates, for the Petitioner.
Mr. Utkarsh, APP for State with SI Maneeta, PS Neb Sarai.
Mr. Abhishek Saket, CGSC with Ms. Sanna Harta, Advocate for UIDAI.
Mr. Shiv Chopra, Ms. Aadhyaa Khanna, Mr. Siddharth Arora & Ms. Nikhil Srivastava, Advocates, for victim/prosecutrix.

The central legal point established in the judgment is the significance of evidence, age determination, and the presumption as to certain offences under the POCSO Act in the context of a bail application.

Headnote:
BAIL - Criminal Procedure - CrPC, IPC, POCSO - 439 - 363, 366, 376, 506, 6 - The court discussed the provisions of CrPC, IPC, and POCSO Act in the context of the bail application. It highlighted the importance of age determination and the presumption as to certain offences under Section 29 of the POCSO Act. The court also emphasized the need for evidence and the procedure for determining the age of the victim/prosecutrix.
Fact of the Case:

The victim/prosecutrix was allegedly abducted and married to the applicant. Conflicting statements were made by the victim/prosecutrix regarding the events, including her relationship with the applicant and the alleged threats made by him. The age of the victim/prosecutrix was a key point of contention.
Finding of the Court:

The court considered the conflicting statements of the victim/prosecutrix, the age determination inquiry, and the presumption as to certain offences under the POCSO Act. It concluded that the victim/prosecutrix, though a minor, was of an age where she could understand the consequences of her actions. The court also noted the lack of evidence to substantiate the alleged threats made by the applicant.
Issues: The key issues revolved around the conflicting statements of the victim/prosecutrix, the determination of her age, and the presumption as to certain offences under the POCSO Act. The court also addressed the bail application in the absence of framed charges.
Ratio Decidendi: The court emphasized the importance of evidence and the procedure for determining the age of the victim/prosecutrix. It also highlighted the need to consider the presumption as to certain offences under the POCSO Act and the bail application in the absence of framed charges.
Final Decision: The court granted bail to the applicant with specific conditions, noting that the application was allowed based on the facts and circumstances of the case. The court clarified that the decision did not reflect an opinion on the merits of the case.

JUDGMENT

Amit Sharma J.

1. The present application under Section 439 of the Code of Criminal Procedure, 1973 ('CrPC') seeks grant of regular bail in case FIR No. 118/2021 dated 10.04.2021, under Sections 363/366/376/506 of the Indian Penal Code, 1860 ('IPC') & Section 6 of the Protection of Children From Sexual Offences Act, 2012 ('POCSO'), registered with PS Neb Sarai.

2. The brief facts of the present case are as follows:

i. The father of the victim/prosecutrix made a complaint on 10.04.2021 at PS Neb Sarai, stating that his daughter had been abducted from the house on the morning of 07.04.2021 at about 07:20 AM. It was further stated that he suspected the present applicant had abducted his daughter and was afraid that he will marry his daughter, who was a minor. On the basis of the aforesaid complaint, FIR No. 118/2021, under Section 363 of the IPC was registered at PS Neb Sarai.

ii. On 02.07.2021, a Special Team of the PS Neb Sarai received a communication and reached Badmalik Road, Vishwamil Rai, Sonepat, from where the victim/prosecutrix was recovered alongwith the present applicant.

iii. The victim/prosecutrix was taken to All India Institute of Medical Sciences, New Delhi for her medical examination. However, she refused to undergo internal examination.

iv. During the course of investigation, on 02.07.2021, the statement of victim/prosecutrix under Section 164 of the CrPC was recorded, wherein she stated as follows:

"Papa scolded me one day. Out of anger, I left my house and went to Sonipat to my friends place. I went to him on 10 June and came back today. Nothing wrong happened with doing this stay. That's all I want to say."

v. Apart from the above, the statement of victim/prosecutrix was also recorded under Section 161 of the CrPC, wherein she again stated that on account of her quarrel with her father, she had gone with her school friend, i.e., the present applicant to his house in Sonepat. It is also recorded that the parents of applicant were also in Sonepat and that the applicant did not do anything wrong with her.

vi. Thereafter, she was produced before the concerned Child Welfare Committee ('CWC') on 03.07.2021. Before the CWC, she stated that nothing wrong was done with her, and on directions of the CWC, she was released into the care and custody of her father.

vii. The applicant was arrested in the present FIR on 02.07.2021 under Section 363 of the IPC and since the same is a bailable offence, he was released on bail.

viii. On 05.07.2021, the victim/prosecutrix came alongwith her brother to the Police Station and made a request for her statement under Section 164 of the CrPC to be recorded again and to undergo a medical examination.

ix. On 06.07.2021, the statement of victim/prosecutrix under Section 164 of the CrPC was recorded, wherein she stated as under:

"I left my house on 7 April 2021 without informing my family and went to Rai, Sonepat to meet my fried Vipin. After staying there for 2 days, he managed a job for me in a company. I stayed with him for 3 months. I loved him, so I ran away. Now I do not love him. He had talked to me regarding our marriage. He had told me regarding his household and family and said that he would give me everything. He made physical relations with me for 10-12 times. He used to beat me, used to drink. My elder mummy Kamini Devi, her husband Satinder, their children Divya, Priya, Ashu and maternal uncle of Vipin, Avinash had told me that boy is nice and I should go with him, so I went with him.

After 2 minutes again said, Vipin used to threaten me that he would not spare me in case I disclose any thing about him to instigate him. When my statement was recorded in the Court last time, I was feeling paniky and I was not feeling well."

x. During investigation, in her statement recorded under Section 161 of the CrPC, she stated that she was introduced to the applicant in October, 2020. It was further recorded that physical relations were made between the applicant and the victim/prosecutri