Sahil vs State Govt. Of Nct Of Delhi And Anr on 30 January, 2025

Delhi High Court – Orders

Sahil vs State Govt. Of Nct Of Delhi And Anr on 30 January, 2025

Author: Amit Sharma

Bench: Amit Sharma

                                    $~10
                                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    +    BAIL APPLN. 3760/2024
                                         SAHIL                                       .....Petitioner
                                                        Through: Mr. Adit S. Pujari, Mr. Manvendra
                                                                 Singh Shekhawat, Ms. Vanya Chabra,
                                                                 Mr. Mohd. Arif Hussain, Mr.
                                                                 Sheerif K A, Advs.
                                                        versus

                                                STATE GOVT. OF NCT OF DELHI AND ANR. .....Respondents
                                                                   Through: Ms. Shubhi Gupta, APP for the State.
                                                                               Mr.     Harsh     Prabhakar, Adv.
                                                                               (DHCLSC) for the Complainant, Mr.
                                                                               Dhruv Chaudhary, Mr. Adeeb A., Ms.
                                                                               Eshita Pallavi, Advs.
                                                                               SI Pooja.
                                                CORAM:
                                                HON'BLE MR. JUSTICE AMIT SHARMA
                                                                   ORDER

% 30.01.2025

1. This hearing has been done through hybrid mode.

2. The present application under Section 439 of the CrPC seeks grant of
regular bail in case FIR No. 627/2020 under Sections 363/376 of the IPC and
the Section 6 of the POCSO Act, 2012, registered at PS Mehrauli.

3. The present FIR was registered on 27.09.2020 on the basis of the
complaint of the mother of the survivor wherein it was alleged that her
daughter, who was 16 years of age, had gone to market on 26.09.2020 and has
thereafter, gone missing. During the investigation, search of the missing girl
was made and (WT message) was spread to all SHOs of Delhi Police.
Information regarding the missing girl was also sent to the concerned
authorities. During the investigation, an information was received that the
missing girl is living with one person, i.e., the present applicant in Vasant

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Kunj, Delhi and in pursuance of the said information, the Investigating Officer
reached the concerned house where the missing girl, i.e., the survivor was
found with the present applicant. It was stated that both the survivor and the
present applicant were living as husband and wife. Thereafter, the survivor
was sent for her medical examination and was found 8 months pregnant. She
thereafter, gave birth to a baby on 30.10.2020 at AIIMS, New Delhi. During
the investigation, the statement of the survivor was recorded under Section
164 of the CrPC wherein, she had stated that the applicant was her neighbour
and she was in relationship with him and on account of the same, she got
pregnant with his child. During the course of the investigation, the applicant
was arrested and offences punishable under Section 376 of the IPC and
Section 6 of the POCSO Act were added in the FIR. The DNA of the survivor
and her child as well as the present applicant were sent to FSL for DNA
analysis, and as per the result of the said exhibits, the applicant and the
survivor were stated to be biological parents of the baby.

4. Learned counsel appearing on behalf of the applicant submits that the
survivor, who was examined as PW-1 before the learned Trial Court, has
categorically stated that she was in a relationship with the present applicant
and out of her own will and without any force or pressure, she had eloped with
the present applicant. She has also stated that she was living in a room taken
on rent by the applicant in Vasant Vihar, when they were apprehended by the
police. Learned counsel for the applicant further submits that the applicant, at
that time, was 24 years of age and had not abandoned the survivor which is
also reflected from the statement made by her in the Court.

5. It is further submitted, even as per the case of the prosecution, that the
survivor was about 16 years of age at that particular point in time, and was

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thus, mature enough to understand the consequences of her decision. It is
submitted that all the material public witnesses in the present case i.e., the
survivor/PW-1 and mother of the survivor/PW-4, have been examined and
only the official witnesses remain to be examined. It is further submitted that
the applicant has been in custody since the date of his arrest, i.e., 29.10.2020
and has undergone incarceration for more than 4 years. It is further submitted
that the prosecution has cited 17 witnesses and only 6 have been examined so
far, and therefore, trial is not likely to be completed in the distant future.
Reliance has been placed on the following observation of a learned
Coordinate Bench of this Court in Sonu v. State, 2023 SCC OnLine SC
7053: (2024) 306 DLT 22: –

“21. No doubt that during period of alleged occurrence prior to
30.03.2021, the prosecutrix was minor but at the same time it
cannot be overlooked that the prosecutrix was aged 16½ years
when she first left her home. Thus, she was of sufficient maturity
and intellectual capacity to understand the implication of her
conduct. The petitioner was unmarried, aged about 28 years and
was working in the ITBP at the relevant time. Thus, legally and
financially he was also in a position to start his family life.

**** **** ****

25. This Court in “Ajay Kumar v. State Govt. of NCT” in Bail
Application 2729/2022 observed that the intention of POCSO was
to protect the children below the age of 18 years from sexual
exploitation. It was never meant to criminalise consensual romantic
relationships between young adults.

26. That apart, the testimonies of the prosecutrix and material
witnesses have already been recorded, therefore, there cannot be
any apprehension about the material witnesses being influenced.

27. Further, it is not in dispute that the antecedents of the petitioner
are clean. The petitioner, who is aged about 28 years, is already in
custody since 12.05.2022. Keeping the petitioner in jail will not

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serve any useful purpose; rather subjecting young boy in the
company of hardened criminals would do more harm than good to
him.”

6. Per contra, learned APP appearing on behalf of the State, assisted by
the learned counsel for the survivor, submits that the consent would be
immaterial as the survivor was of 16 years of age and the FSL report also
establishes the fact that penetrative sexual assault was committed on her.

7. Heard learned counsel for the parties and perused the records.

8. The survivor/PW-1 in her testimony before the learned Trial Court has
categorically stated that she had eloped with the present applicant because she
had become pregnant. She had further stated that she had learnt about this
pregnancy in March 2020. However, the applicant at that time got stuck in his
village because of the nationwide lockdown on account of Covid-19
pandemic. It was further stated that when the applicant came to Delhi in
September 2020, they both eloped. The survivor, as per the case of the
prosecution, was minor at that time of the incident and was stated to be 16
years of age. But in terms of the testimony given by her, it cannot be ignored
that she was of sufficient maturity and had joined the company of the
applicant out of her own will as the applicant and the survivor were in a
consensual relationship. It is also noted that the applicant, even as per the
statement of the survivor, did not abandon her in that situation. In fact, the
case of the prosecution is that they were found living as husband and wife
from the house in which they were found. It is also noted that the survivor
when she gave her deposition before the learned Trial Court was 18 years of
age. The applicant is stated to be in custody since 30.10.2020 and as per the
nominal roll, he has undergone nearly 4 years and 3 months of incarceration.

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The prosecution has cited 17 witnesses, however, 6 have been examined so
far which include all the material public witnesses. Trial is not likely to be
completed in the near future.

9. In the totality of the facts and circumstances, the present application is
allowed and the applicant is directed to be released on bail, on his furnishing
a personal bond of Rs. 25,000/- with one surety of like amount, to the
satisfaction of the learned Trial Court/Link Court, further subject to following
conditions: –

i. The applicant shall not leave India without prior permission of the
learned Trial Court.

ii. The applicant shall intimate the learned Trial Court by way of an
affidavit and to the Investigating Officer regarding any change in
residential address.

iii. The applicant shall appear before the learned Trial Court as and when
the matter is taken up for hearing.

iv. The applicant is directed to give his mobile number to the Investigating
Officer and keep it operational at all times.

v. The applicant shall not, directly or indirectly, tamper with evidence or
try to influence the witness in any manner.

10. The application is allowed and disposed of accordingly.

11. Pending applications, if any, also stand disposed of.

12. Needless to state that, nothing mentioned hereinabove, is an opinion on
the merits of the case and any observations made herein are only for the
purpose of the present bail application.

13. Copy of the order be sent to the concerned Jail Superintendent for
necessary information and compliance.

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.
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14. Order be uploaded on the website of this court forthwith.

AMIT SHARMA, J
JANUARY 30, 2025/kr
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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 30/01/2025 at 22:42:08