Delhi High Court
Shamsher vs The State on 24 April, 2019
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order Reserved on: 12th April, 2019
Order Pronounced on: 24th April, 2019
+ BAIL APPLN. 377/2019
SHAMSHER ...Appellant
Through: Ms. Vagisha Kochar Advocate
Versus
THE STATE ...Respondent
Through: Mr. G.M Farooqui, APP for the State
with SI Subhash Chander,
PS-S.P. Badli, Delhi
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
BAIL APPLN. 377/2019
1. By way of the present petition filed under Section 439 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') the
petitioner seeks grant of regular bail in FIR No. 1107/2014 under
Sections 363/376 of the Indian Penal Code, 1860 (hereinafter referred
to as 'IPC') and Section 6/10 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO')
registered at Police Station SP Badli, Delhi. The petitioner is stated to
be in judicial custody since 01.10.2014. Status report is on record.
2. The brief and necessary facts of the case are that DD No. 31A was
registered at Police Station Samaipur Badli on 30.09.2014, in receipt
of the information that some wrong thing has happened with a girl, the
said DD was marked to SI Ashok Kumar, who along with his staff
arrived at the BSA Hospital wherein they met the victim 'K' and her
mother 'Complainant P'. The statement of the 'Complainant P' was
recorded by Sub-Inspector Sushila wherein she stated that on
30.09.2014 at about 9 p.m. her daughter went missing. During the
search of their daughter they heard the cries of their daughter from the
house of Shamsher S/o Deen Mohamad and on reaching at the house
of the petitioner, she saw that the petitioner had taken off his pants
and the underwear of her daughter and was sexually assaulting her.
Consequently her daughter was recovered in a petrified state wherein
she purported allegations against the petitioner and stated that 'pani
wale uncle naih mere sath galat kaam kiya hain'. Based on the her
statement recorded and the contents of her daughters MLC, FIR No.
1107/14 was registered under Section 363/376 of the Indian Penal
Code and Section 10 of the POCSO Act.
3. The previous application for grant of regular bail filed by the
petitioner before the Additional Sessions Judge, was dismissed vide
order dated 02.11.2017. Hence, the present bail application.
4. Ms. Vagishka Kochar learned counsel for the petitioner has contended
that the testimony of complainant and her daughter is bristled with lot
of contradictions, inconsistencies and improvements and they have
given different versions in their statements recorded at different stages
and the same does not corroborates with medical evidence because as
per the MLC of the Victim it was opined that the hymen was not
ruptured and there was presence of no external injury, whereas it is
relevant to highlight that the complainant has herself refused for the
internal medical examination of her daughter.
5. Counsel for the petitioner lastly urged that the petitioner is the sole
bread owner of his family and being an old man aged about 65 years
has already undergone incarnation as an under-trial prisoner for more
than 4 years and 4 months and further undertakes not to tamper any
evidence or influence any witness. Therefore in view of the above
circumstances bail be granted to the petitioner.
6. Per contra, Mr. G.M Farooqui Learned APP for the State vehemently
opposed the bail application of the petitioner and submitted that the
allegations against the petitioner are serious in nature and in view of
the nature and gravity of the alleged offence, the present petition be
dismissed.
7. I have heard the learned counsel for the parties and perused the
material available on record.
8. Perusal of the record reveals that the 'Complainant P' has taken a
consistent stand in her statements recorded under Section 161 Cr.P.C.
and subsequently under Section 164 Cr.P.C. whereby she has made
serious allegations of penetrative sexual assault committed upon her
daughter 'K' by the petitioner
9. Further, the complainant's daughter/'K' deposed during her
Examination-In-Chief as under:-
"Accused Samsher(Present in the court today
and correctly identified by witness through
wooden partition) used to do the work of
water(paani ka kaam karte hain) is well known
to me. On the fateful night, accused Samsher
taken me to his house. He put off my
underwear and also his underwear. Accused
touched my urinary part with his urinary part.
He committed wrong with me. Accused gave
me a Rupee coin prior to this. I started crying
and my mother reached there and rescued
me."
10. Moreover the Status report filed by the State reveals that the FSL
report was obtained wherein it was opined that "semen was detected
on the undergarments of the victim and the DNA profile of the
detected semen was matched with the DNA profile generated from
the petitioner seized blood sample".
11. After careful scrutiny of the facts and circumstances of the case, the
contents of the FIR in question and other material placed on record
and in view of the serious allegations against the petitioner and other
factors including severity of the punishment prescribed in law, I find
no sufficient ground to grant bail to the petitioner.
12. Accordingly, the present petition stands dismissed.
13. Before parting with the above order, it is made clear that anything
observed in the present petition shall have no bearing on the merits of
the case during trial.
SANGITA DHINGRA SEHGAL, J
APRIL 24, 2019
