Gulshan vs State Nct Of Delhi
2020 Latest Caselaw 1474 Del

$~18

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of Decision: 04.03.2020
+        BAIL APPLN. 303/2020
         GULSHAN                             ..... Petitioner
                            Through:    Dr. M.K. Gahlaut and Mr.
                                        Varun Jain, Advocates.
                            Versus
         STATE ( GOVT OF NCT OF DELHI                ..... Respondent
                            Through:    Mr. Tarang Srivastava,
                                        Additional Public Prosecutor
                                        for State with SI Hema
                                        Chaudhary, PS Sarai Rohilla.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
                    JUDGMENT

BRIJESH SETHI, J (ORAL)

1. Vide this order, I shall dispose of a bail application filed

under section 439 Cr.P.C on behalf of the petitioner Gulshan in FIR

No. 141/2019 u/s. 376/506 IPC & 4 POCSO Act, PS Sarai Rohilla.

2. Ld. Counsel for the petitioner has prayed for bail on the

ground that petitioner is innocent and has been falsely implicated.

Petitioner is in judicial custody since 28.05.2019. It is submitted that

investigation has already been completed and charge-sheet has also

been filed and petitioner is not required for any investigation.

3. It is submitted that one Monu had good friendly relations with

family of prosecutrix 'K' and her mother. The real sister of the

petitioner namely Monika has lodged the criminal proceeding vide

FIR bearing No.58/19 under Section 354/354A/323 IPC P.S. Sarai

Rohilla against Monu on 11.03.2019. Resultant thereof, the

prosecutrix and her mother have developed the malice, ill will,

personal vendetta and grudge against the petitioner and due to which

a false case was lodged against the petitioner by misusing and

abusing the statutory provisions of Section 376/506 IPC and Section

4 of POSCO Act to create a pressure, force and coercion upon the

petitioner so that real sister of the petitioner may not pursue her

criminal case against said Monu.

4. It is submitted that the entire case of the prosecution is based

upon the statement of the complainant i.e. mother of victim and

victim herself and there is no chance of tampering with the

prosecution evidence in any manner whatsoever.

5. It is lastly submitted that petitioner has clean antecedents and

he is a permanent resident of Delhi. It is, therefore, prayed that

petitioner be released on bail.

6. Ld. APP for the State has opposed the bail application on the

ground that the allegations against the petitioner are serious in

nature. Petitioner has made sexual intercourse with the victim who

was minor ie. about 14 years old at the time of commission of

offence without her consent. He has, therefore, prayed for dismissal

of bail application.

7. I have considered the rival submissions. The present case was

registered on the complaint of complainant 'S', who is the mother of

the prosecutrix 'K' wherein she alleged that her neighbour Gulshan

i.e. the petitioner took her daughter to the room of his friend co-

accused Firoz in July 2018 where he forcefully made physical

relations with her daughter and threatened to kill her brother, if she

tells anyone about the incident. When she came to know about the

incident that has happened with her daughter, she filed the

complaint. Statement of the complainant i.e. mother of the victim

u/s 164 Cr.PC was recorded wherein she corroborated the FIR and

also stated that the mother and sister of the petitioner were well

conversant of what the petitioner had done to the victim.

8. In her statement recorded u/s. 164 CrPC, the victim has

categorically stated that petitioner had taken her to his friend's

house (Firoz) at Daya Basti. The petitioner had taken the keys from

Firoz who had thereafter left the house. Thereafter, the petitioner

had removed her Salwar and committed sexual intercourse with her.

Thereafter petitioner threatened the victim that if she discloses

anything to anyone, her brother would be killed and she would be

defamed. The victim had stopped going to the school and revealed

everything to her mother. The victim has submitted that petitioner is

still threatening her on phone and also compelling her for marriage.

His mother and sister are also building pressure for marriage.

9. Ld. counsel for the petitioner, has however, argued that

petitioner is innocent and falsely implicated. In one audio

conversation between the prosecutrix and petitioner which is in the

custody of investigating agency, the prosecutrix has admitted the

fact that petitioner did not commit any rape upon her. I have

considered the contention of Ld. counsel for the petitioner. The

authenticity of the conversation recorded in CD can only be judged

at the appropriate stage i.e. during the course of trial. However,

there is another CD on record regarding conversation dated

26.04.2019 between petitioner and prosecutrix. Transcription of the

same reveals that on second page of the second recording it is stated

by the petitioner that he has done everything. Of course, the

authenticity of this conversation will also be judged during the

course of trial. It is settled law that at this stage of bail, the court

cannot minutely examine and analyze the evidence in detail as no

mini trial can be conducted while deciding the bail application.

10. Keeping in view the above facts and the allegations leveled

against the petitioner which are very grave in nature and further

keeping in mind the age of the victim/ prosecutrix and further in

view of the fact that even threat was extended to the victim, no

grounds for bail are made out at this stage. The bail application is,

therefore, dismissed and stands disposed of accordingly.

BRIJESH SETHI, J

MARCH 4, 2020 Amit