Mahesh Grover, J.:— By this order we will dispose of four applications i.e. Cr.M. Nos. 23962, 26910-11 and 26930 of 2017 under Section 389 Cr.P.C. praying for release of the applicants on bail during the pendency of the appeal.
2. Cr.M. No. 26910 of 2017 is allowed as prayed for.
3. All the three accused namely Hardik son of Rajeev Kumar, Karan son of Gulshan and Vikas son of Mohan Lal faced a criminal trial pursuant to a case registered against them vide F.I.R. No. 144 dated 11.4.2015 under Sections 376D, 376(2)(n), 376, 292, 120-B, 506 I.P.C. and Section 67 of the I.T. Act at Police Station Rai Sonepat. The details of their conviction and sentence are as below:—
Name of the convict. Offence u/s. Period of sentence (RI) Fine imposed Period of sentence in default of payment of of fine (RI). HARDIK 376(D) IPC 376(2)(n) IPC 120-B IPC 292 r/2 34 IPC 506 IPC 67-A of Information Technology Act, 2000. Twenty years Ten years Seven years Two years Two years Five years Rs. 20,000/- Rs. 10,000/- Rs. 10,000/- Rs. 2,000/- Rs. 2,000/- Rs. 50,000/- One years Ten months Ten months Two months Two months Five months KARAN 376(D) IPC 376(2)(n) r/w 120-B 292 r/w 34 IPC 67-A Information Technology Act, 2000. Twenty years Ten Years Two years Five years Rs. 20,000/- Rs. 10,000/- Rs. 2,000/- Rs. 50,000/- One year Ten months Two months Five months VIKAS 376 IPC R/W 120-B IPC 292 r/w 34 IPC 67-A of Information Technology Act, 2000. Seven years Two years Five years Rs. 10,000/- Rs. 2,000/- Rs. 50,000/- Ten months Two months Five months
4. The victim as also the applicants are all students studying in Jindal University at Sonepat.
5. According to the victim, she had taken admission to a course on 12.8.2013 and she became acquainted with Hardik Sikri on 14.11.2013 whereafter they continued as good friends for one month during which period he indulged in physical relations with her forcefully. Thereafter she broke up with him, but he continued to force himself on her and even forced her to send nude pictures of herself which she sent on the mobile number of Hardik Sikri. These were utilised by him to threaten and blackmail her into submission and sexual gratification. Similarly, she was forced into physical relations with Vikas Garg and Karan Chhabra who are friends of Hardik Sikri. She alleged that Karan Chhabra indulged in physical relations twice forcefully while Vikas Garg did it once and all these incidents took place in the lounge of Campus of the University after 10 O'clock. She further alleged that Hardik Sikri and Karan Chhabra had physical relations with her forcefully on the same day after 10 O'clock.
6. On her statement, the F.I.R. was registered on 11.4.2015 and her statement under Section 164 Cr.P.C. was recorded on the same day. The fact which needs to be mentioned as it surfaces in the evidence, is her admission that while recording proceedings under Section 164Cr, P.C, she was alone with the Magistrate with no other person in attendance suggesting a statement free from any pressure. On 8.6.2015, she got her supplementary statement recorded to the Special Investigating Team constituted for the purpose wherein she assigned specific dates to the incidents of forceful submission to her narrative.
7. Learned counsel for the applicants Hardik and Karan have virtually offered similar arguments with which we shall deal subsequently while the learned counsel representing Vikas Garg apart from offering an argument of innocence and false implication as also the improbability of the whole narrative of the victim, have contended that he has been awarded 7 years RI for the solitary incident of a sexual encounter with the victim and no further role in blackmailing or sharing the objectionable photographs has been assigned to him by the victim. He has also contended that he, like few other students in the Campus, was known to the victim which she admits in her statement under Section 164 Cr.P.C. as also in her testimony. He has drawn our attention to her testimony in Court where she states that in January, 2017, Hardik Sikri sent his friend (applicant) to meet her and it seemed to her that Vikas Garg was aware of the unfortunate dilemma that she was facing on account of the blackmail by Hardik Sikri. She states that she was looking for solace and Vikas took advantage of her and forced himself physically upon her in April, 2014. She further goes on to admit that she was acquainted with Vikas and he would message her soliciting information about one of her female classmates.
8. From this, learned counsel for the applicant wants the Court to infer that it cannot be a case where she was forced into physical relations with him and rather, it is a case where even if the allegations are taken to be correct, it would imply casual sex with a consenting partner.
9. Similarly, the learned counsel for the applicants Hardik and Karan have strenuously referred to the testimony of the prosecutrix where she admits that she met Hardik on 14.11.2013 during the Children day celebration and they befriended each other on request by Hardik on facebook whereafter they met frequently and it was not long before they had sexual relations. Some of the portions of her testimony need to be set out in verbatim:
“He then sent his own nude pictures and coaxed me into sending my nude pictures. These pictures later became the basis of this long drawn blackmail of sexual, emotional, physical harassment.”
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In August, 2014 Hardik got his friend Karan Chhabra along with him and threatened me that I have to sexually gratify Karan as well otherwise, they will expose my pictures in the entire University and also send it to my parents, Between August 2014 and December, 2014 Karan Chharba sexually forced himself upon me without my consent twice. On each A of the instances, I begged and pleaded but my pleas went unheard.”
10. The aforesaid have been extracted verbatim only to understand the role assigned to Hardik and Karan. In so far as Vikas Garg is concerned, we have delineated his role separately in the foregoing paragraphs.
11. Learned counsel for appellants Hardik Sikri and Karan have vehemently argued that the testimony of the victim does not reveal that she was being subjected to a traumatic blackmail rather, she comes across as a willing and compliant person.
12. A perusal of the statement of the victim as also her cross-examination reveals a promiscuous relationship and sexual encounters with all the three accused persons over a period of time and at no stage did she ever make any attempt to reveal her mental state to either the authorities in the college or to her parents or her friends. She also stated as below:—
“He (Hardik) would make me do crazy things like run around the entire campus in the day, leave my class in the middle because he wanted nude pictures, would not let me meet my friends whenever I wanted, would not let me eat food, drink water or do anything without his permission. He then forced me to purchase a sex toy against my will. I kept pleading that I do not want as it is a very shameful thing to have but he kept insisting as he wanted me to use it, so he could gratify himself via skype on the days when he could not force himself physically upon me.
On 26.1.2015, I acceded to his demand of buying the sex toy under pressure of my photographs getting exposed in the entire university. On 7.2.2015, Hardik Sikri again threatened me on the basis of my photographs that I have to come to Ethnic Resort, take a room in my own name as if his name came anywhere in the records he will destroy my life. He had also invited Karan Chhabra to come but he could not since his mother had just passed away.”
13. The victim was subjected to intense cross-examination and she admitted that in vacations she used to go to her parental house in Delhi. In the winter vacations of 2013, she had come to Delhi and remained there for 15 days with her parents. In April, after the examination, there were vacations for three months and in the year 2014, she went to Delhi to spend the entire vacations with her parents. Despite this, she made no attempt to confide in her parents.
14. She also conceded in her cross-examination that her hostel room was searched leading to recovery of condoms by the Warden, but the parents were not informed in this regard. She further admitted that she used to smoke cigarettes of ‘Classic’ make. Apart from this, she admitted use of drugs but clarified it that it was not by choice. She conceded that the drug which she took was known as ‘Joint’ and the same is smoked. She also admitted that one Akshat was hospitalized after taking drugs with her and that Hardik scolded her for this and asked her not to take drugs.
15. Some portion of her cross-examination we intend to extract for it gives an insight into the goings on between the victim and the accused persons:—
“I did not remember when I reached the Ethnic. I cannot say if Hardik had reached the Ethnic after four hours or six hours after my reaching there. I had consumed beer after arrival of Hardik. I had consumed only one can of beer. Volunteered A after committing forceful sex upon me Hardik had forced me to drink two bottles of beer. It is wrong to suggest that Hardik never forced me to drink two bottles of beer or he never had any forceful sex with me. I had asked Hardik to bring bottles of beer. Volunteered I had said so since under the influence of alcohol forceful sex little more bearable.”
16. Another portion of the cross-examination of the prosecutrix is extracted here below:—
“It is correct that room was got booked by me on my own expense and I had also taken a pack of cigarettes, Viagra and condoms along with me.”
17. The victim in her examination-in-chief has referred to the incident between August, 2014 and December, 2014 when Hardik with friend Karan Chhabra forced themselves upon her one by one. She alleged that this incident took place after 10 p.m. in the Pilot Room of the Helipad, the nursery behind the helipad, in the guardbox situated on the football field and in the academic block washroom.
18. In her cross-examination, she stated as under:—
“It is correct that the University Library used to remain open for students till 1 a.m. It is correct that the students used to roam in groups in the Campus till 1 a.m. It is correct that outside the hostel, guards were deputed. One male guard used to remain present outside the girls hostel and one or two female guards in the night hours. In some places CCTV Cameras have been installed by the University authorities. It is A correct that the University authorities have installed the CCTV Cameras outside the academic black to check the movement of the students or any other person. I am not aware if the CCTV cameras have also been installed in the open space like football ground, helipad, nursery and other places.
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I am aware about one flood light which is installed in football ground and one flood light near helipad on the left side if facing the helipad. Helicopter of Chairman of the University used to land on the helipad whenever he came and security guards remained present there. One of the small room by the name of pilot room is situated inside the helipad.
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Tennis Court and the basket ball court are nearby to helipad. Generally sometimes students play in the basketball court and tennis court till late night. The badminton court which is situated in helipad is mostly used by the faculty members and students also. Volunteered I had played one of my professor with Mr. Harish Rao. It is correct that most of the time students used to play upto 1 a.m.”
19. It would be debatable whether such escapades were possible in or around a place throbbing with activity and frequented by students till late night.
20. We have considered the arguments of the learned counsel and have thought it prudent to refer to the statement of the prosecutrix and her cross-examination in extenso to gain and give an insight into the immature but nefarious world of youngsters unable to comprehend the worth of a relationship based on respect and understanding. The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.
21. No wonder, what is thrown up before us is a tragedy of sorts, driving four young lives and equal number of familles into an abyss.
22. There is indeed no doubt that few allegations of the victim regarding blackmail, if correct need strongest condemnation with equal forceful retribution that the law mandates and this becomes the testing ground for us to balance, these divergent aspects.
23. What is equally worrisome is how to retrieve the youth who have dragged themselves and their families into an abysmal situation, be it the victim or the perpetrators.
24. Indeed all the transgressions if established would demand retributory justice at the time of decision of the appeal, but while dealing with an issue of suspension of sentence, we are constrained to not only keep in mind the gravity of the situation and the offence, but also to strike a balance between the retributory reformatory and rehabilitative justice.
25. The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.
26. We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind. She states that “he (Hardik) then sent his own nude pictures and coaxed me into sending my own nude pictures”.
27. The perverse streak in both is also revealed from her admission that a sex toy was suggested by Hardik and her acceptance of the same.
28. We are informed that the victim has shifted out from the University whereas the applicants are lodged in jail.
29. As per the Custody Certificates produced by the learned counsel for the State, applicant Vikas Garg has undergone an actual sentence of 1 year 11 months 14 days, applicant Karan has undergone 2 years 4 months 26 days and applicant Hardik has undergone 2 years 5 months.
30. It is essential for us to balance the concerns of the victim, demands of the society and law and the element of reformatory and rehabilitative justice. It would be a travesty if these young minds are confined to jail for an inordinate long period which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings. Long incarceration at this stage when the appeal is not likely to mature for some time is likely to result in an irreparable damage. We are also of the opinion that the pendency of the appeal, ironically may work as a guarantee to prevent a repeat resulting from the fear of incarceration in the event of failure of the appeal.
31. We, therefore, taking into consideration the aforesaid facts, deem it appropriate to accept the applications for suspension of sentence and direct the suspension of sentence of all the three applicants namely Vikas Garg, Hardik and Karan subject to the following conditions:—
(1) The applicants shall not leave the country and shall surrender their passports to the Registrar of this Court within a period of one week. However, in case they want to go abroad in future to pursue their studies, they will be free to apply to the Court in this regard, which prayer shall be considered on its merit and allowed only subject to heavy surety of immovable property.
(2) Under no circumstances will they approach the victim either physically or through any other mode of communication.
In the event of the victim making such a complaint of harassment, or even any approach by any of the applicants or their family members would result in cancellation of their bail
(3) All the three accused persons would be subjected to counseling by a trained Psychiatrist and since the parties are based in Delhi and Sonepat, we prescribe the doctor of All India Institute of Medical Sciences where they will be counseled for correcting their behaviourial aberration.
32. The Member Secretary, Legal Services Authority, Gurgaon would facilitate such a course. We would request the Director of the A.I.M.S. to also facilitate the counseling of the victims and further make a request that a report in this regard be communicated to this Court indicating whether the applicants are free of their voyeuristic tendencies. For this purpose copy of the order be supplied to him to enable him to get in touch with the accused persons.
33. In fact it will be the duty of the parents to furnish the progress of their wards in this regard to this Court after six months.
34. We notice that the trial Court has not taken care of the victim's concerns in terms of compensation and therefore, as an interim measure, we direct that a total compensation of Rs. 10 lacs to be shared equally by all the three applicants be paid to the victim for onward transmission to the victim.
35. With the aforesaid observations, all the three applications for suspension of sentence are accepted and the applicants are directed to be enlarged on bail subject to their furnishing surety to the satisfaction of the learned trial Court and also subject to their depositing the amount of compensation before the same Court.
36. Nothing said above should be construed to be an expression on the merits of the case.
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