Shivam Sahu vs State (Gnct Of Delhi)
2020 Latest Caselaw 2639 Del

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      BAIL APPLN. No.1563/2020

                                                            Judgment reserved on : 02.09.2020
                                                                 Date of decision: 16.09.2020


                          SHIVAM SAHU                                          ..... Applicant

                                               Through:    Mr.Yogesh Sharma, Advocate.


                                               Versus


                          STATE (GNCT OF DELHI)                                .....Respondent


                                               Through:     Mr. Kamal Kumar Ghei, APP for State
                                                           with SI Gazal Chugh.
                                                           Mr. Bharat Bhushan Kaushik, Advocate
                                                           for complainant.


                          CORAM:
                          HON'BLE MS. JUSTICE ANU MALHOTRA

                                                           JUDGMENT

ANU MALHOTRA, J.

1. The applicant, vide the present application seeks the grant of bail

in relation to FIR No.114/2020, PS Seemapuri under Sections 376/506

of the Indian Penal Code, 1860 and Section 6 of the POCSO Act, 2012

submitting inter alia to the effect that he has been falsely implicated in

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 the instant case at the behest of the mother of the complainant who

seeks to settle her personal scores with the first wife of her husband and

the brother of his first wife of her husband who is the father of the

applicant herein. It has further been submitted on behalf of the applicant

that the FIR has been lodged against the applicant by the complainant in

collusion and connivance with the medical staff of the GTB Hospital

and the police department who have ruined the life of the applicant and

also to teach his father a lesson for helping his sister who is the step

mother of the alleged victim/prosecutrix. The applicant submits that the

charge sheet, the FIR and the medical documents annexed thereto, make

it clear that the entire allegations levelled against the applicant are

concocted and planned.

2. Notice of the application was issued to the State. In as much as,

there are allegations qua the alleged commission of the offence

punishable under Section 376 of the Indian Penal Code, 1860 and

Section 6 of the POCSO Act, 2012, notice of the application was also

directed to be issued to the prosecutrix through the Investigating Officer

concerned for her obligatory presence through video conferencing

either by herself or by her authorized representative.

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Signing Date:01.10.2020 17:02

3. The State has submitted its status report dated 20.07.2020 under

the signatures of the SHO, PS Seemapuri in response and during the

course of the proceedings taken up through video conferencing, the

State has also placed on record through email, copy of which print out

is placed on record, the copy of the ERSS sheet in question in the

instant case. The prosecutrix was also represented through her counsel.

4. Submissions were made on behalf of the applicant by the learned

counsel for the applicant, on behalf of the State by the learned APP for

the State and on behalf of the prosecutrix by the learned counsel for the

prosecutrix.

PROSECUTION VERSION

5. As per averments made in the charge sheet on 20.03.2020, DD

No.5A was lodged pursuant to MLC No.G-28/2020 as prepared at the

GTB Hospital and was entrusted to ASI Sanjay Pandey No.208/SHD

and furthermore, DD No.6A was also received through a PCR call by

ASI Sanjay Pandey and thus, on receipt of DD No.5A, ASI Sanjay

Pandey along with Constable Umesh No.1455/SHD went to the GTB

Hospital and vide DD No.7B, PSI Gazal Chugh on directions of the

Senior Officers also reached the GTB Hospital where PSI Gazal Chugh

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 met ASI Sanjay and Constable Umesh, the victim „A‟ and her mother

„HK‟ along with the NGO Counsellor. ASI Sanjay handed over the

MLC bearing No.G-28/2020 of the victim „A‟ on which the doctor had

observed "alleged history of sexual assault", whereafter, PSI Gazal

Chugh made inquiries from the victim „A‟ in the presence of her mother

„HK‟ after which the victim was counselled by the Counselor of the

NGO and the Counselor‟s report was prepared and the PSI observed

that there was a prima facie offence committed under Sections

376/354B/506 of the Indian Penal Code, 1860 and Section 6 of the

POCSO Act, 2012 and thus, the FIR was got registered thereunder.

6. The statement of the victim „A‟ was recorded on 20.03.2020

which states to the effect that she resided at „X‟ with her parents and

was studying in Standard 10 in the school „Y‟ and that she had got

friendly with Shivam i.e. the applicant herein who used to visit her step

brother named Ravikant‟s house and she, the victim „A‟ also used to

visit Ravikant‟s house where the applicant and the victim „A‟ got

friendly. As per the complaint made by the victim „A‟ to the PSI Gazal

Chugh in December 2017 when she had gone to her step brother‟s

house i.e. to Ravikant‟s house, then, there the applicant came and after

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 some time her step brother Ravikant told them that he had some work

and was going outside and at that time there was no one in the house

except the applicant and the prosecutrix and the applicant came and sat

near her on the bed and started touching her inappropriately and

forcibly took off her top and took her photograph on his phone,

whereafter, the applicant pressed her breasts on which the prosecutrix

told him what he was doing on which the applicant told her not to speak

much and she got frightened because there was no one at home and then

the applicant forcibly put his private part into her mouth and threatened

her that if she told anyone about the same, he would make her

photograph viral as a consequence of which she quietly out of fear went

back to her house.

7. As per the FIR, on 04.01.2018 the applicant came to the house of

the prosecutrix and there was no one at the house at that time and she

asked the applicant for what he had come to her house and she would

call her mother on which the applicant again started threatening her that

he would make her photograph viral and the applicant forcibly took her

to the bed room and forcibly removed her clothes and took off his

clothes and put his private part into her private part and also threatened

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 her that if she would not do such acts with him then he would kill her

and her family members, whereafter, the applicant repeatedly kept on

having forcible physical relations with her at her house itself, as a

consequence of which she started remaining quiet but despite her

mother asked her as to why she used to be quiet, but because of the

threats of the applicant, she did not tell her mother anything but on

19.03.2020, she told her mother and her sister about what had taken

place with her and then her mother and her sister brought her to the

GTB Hospital where the counsellor of the NGO was also there who also

counselled her at the hospital and the doctor medically examined her.

8. As per the statement of the prosecutrix which forms the basis of

the FIR, the prosecutrix stated that the applicant had several times had

physical intercourse with her against her consent and that she sought

legal action against him. She further stated that she had given her

statement in the hospital in the presence of her mother and had been

read over the contents of her statement.

9. As per the charge sheet, copy of which is on the record, the

applicant herein was arrested on the identification of the mother of the

prosecutrix, the prosecutrix was however unable to assist in relation to

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 the phone in which the applicant had allegedly clicked her obscene

photograph.

10. The statement under Section 164 of the Cr.P.C., 1973 of the

prosecutrix was also recorded during the course of the investigation as

per which statement recorded on 07.04.2020 by the learned Duty MM,

Shahdara, KKD Courts, Delhi, the prosecutrix stated that she was 16

years of age and was studying in Standard 10 and that she understood

the veracity of truth and she was thus, administered oath and through

her statement under Section 164 of the Cr.P.C., 1973, she virtually

reiterated the statement that she made at the time of the lodging of the

FIR and stated that in December 2017, she had gone to her step brother

namely Ravikant‟s house and at about 10:00 am, the applicant, the son

of her family friend/relative came there and that her step brother

Ravikant had to go out for some work and thus, only she and the

applicant were at home and she whilst being on the bed was watching

television and the applicant came and sat next to her and started

behaving inappropriately and pressed her breasts and took off her top

and took her photograph and when she resisted and told him not to do

so, he told her to keep quiet or else he would put her photograph on to

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 the internet and then he put his private part into her mouth and then in

the meantime, her brother Ravikant reached there and she went back to

her home. As per this statement under Section 164 of the Cr.P.C., 1973

of the prosecutrix, in January 2018, the applicant had come to her house

and when she told him that she would inform her mother, the applicant

told her that he would make her photograph viral and would kill her and

then took off her top and put his private parts into her private parts and

repeated the same acts as he had committed previously and thereafter,

the applicant had several times repeated the said acts and kept

threatening her as a consequence of which she continued to remain in

depression and as her mother also used to remain upset, she could not

tell her mother about anything but on 19.03.2020, she told her sister

about the same and her sister informed her mother.

11. As per the charge sheet, the police conducted investigation in

relation to the aspect of the parents of the prosecutrix being aware of

what had taken place with the prosecutrix but on investigation found

that there was nothing to indicate that the parents of the prosecutrix

were aware of the acts of the applicant and thus, no action was taken

against them nor was any action taken against the step brother namely

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 Ravikant of the prosecutrix as there was no evidence found against him

who was thus arrayed under Column no.12.

12. The MLC of the prosecutrix prepared on 19.03.2020 at the GTB

Hospital, Dilshad Garden, the said MLC reads to the effect:-

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 ,

Date History/clinical Findings/Reports Treatment/Instructions

19/3/2020 Alleged H/O sexual assault.

10:50 PM.

As per the victim the incidence happened 1st on December

2017 (1st time) followed by repeated episodes (around 8-9

times) till January 2018. As per the victim she has her step

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 brother (Ravikant 29 years) who got married in Nov, 2017

where she met her brother's friend's sister named X, in his

marriage she became her close friend and she used to call with

the accused X on phone. As per the victim X brother's named

Shivam who is 24 years old took the victims's number from X

and called the victim once or twice on phone. It was a casual

call. As per the victim her both parents are working and when

her parents used to go at work she used to go to her step

brother i.e. (Ravikant's house) the accused (Shivam) who was

close friend of her step brother came to know that during this

time the victim lives with her brother and he took advantage of

this timing and the accused came to her step brother's i.e.

Ravikant's house in this morning at around 10-11 AM. The

victim's brother i.e. Ravikant left the house while the accused

was in the house for some personal work. Then the accused

removed the victim's clothes did sexual intercourse with her.

He also did oral sex with her and also took her pics and

blackmailed her that if she tells anyone he would viral all the

pics on social sites. As per the victim her brother came back

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 after 1-2 hours and the victim told the whole incidence to her

brother who didn't give any response to it and said not to talk

any nonsense with him. She then came her home and when next

day again as per routine she has to go her brother's house she

informed them she narrated the whole incidence to her mother:

who initially kept quiet. Then as per victim she used to stay in

her own house when her parents go to their work. The accused

came to know of this and as per victim he then tortured the

victim in her own house did intercourse (oral and vaginal)

there multiple times in the month of December (2017) and

January (2018). As per the victim her mother called her son

and the accused (Shivam) to her house and asked. the whole

incidence who admitted the fact. The victim's mother then

narrated the incidence to her husband who rather asked her to

stay quiet and not to inform the police. He also gave threat that

he will give poison in case they inform the police. The accused

father is close friend of victim's father. As per the victim when

she came to know that her mother is being beaten up by her

father and they all suffered after 2 years now her mother and

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 sister (R) took courage and came here to file a complaint

against him. As per the victim the accused never met her after

January 2018.

                                                              CMP-24/2/2020            OPT -Negative

                                     O/E                      P/A       soft        O/E No Evidence of
                                                                                       Redness, swelling,
                                                                               Inflamation, tenderness seen
                                     P: 90/mm                tenderness,

                                     BP- 124/80              Rigidity          No E/o Any local Injury

                                                                    _kit not opined as the incidence is 2 years

                                     old

                                                                                    Advised

No gynae intervention required at present A/v in gynae OPD in case of missed period

Marks of : 1. Mole in left 2. Mole on Right Identification face head side of upper lips I am not willing for my internal examination. As per this MLC, the victim‟s mother called her son and the applicant

to her house and asked of the whole incident and the applicant admitted

the fact and the victim‟s mother had narrated the incident to her

husband who rather asked her to stay quiet and not to inform the police

and also threatened that he would give poison in case they informed the

police as the applicant‟s father was a close friend of the victim‟s father

and when the victim came to know that her mother was even being

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 beaten by her father, they all suffered this for two years but thereafter

the mother and sister of the prosecutrix plucked courage and went to the

hospital and lodged the complaint and as per this MLC, the applicant

had never met the prosecutrix after January 2018. The applicant herein

was arrested on 20.03.2020 and the charge sheet was filed on

20.05.2020.

13. The status report dated 20.07.2020 submitted by the State is to

the effect that the material witnesses were yet to be examined and if the

applicant is released on bail, he may influence the victim and the

witnesses of the case. The State has thus vehemently opposed the

prayer made by the applicant seeking the grant of bail submitting that

the offence allegedly committed by the applicant with the minor child

was grave.

CONTENTIONS OF THE APPLICANT

14. The applicant while submitting that he has been falsely

implicated has placed reliance on the ERSS sheet i.e. the Emergency

Response Support System sheet of the Delhi Police to submit that as per

the said ERSS sheet, it was the sister of the prosecutrix who called on

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 19.03.2020 at 23 hours 9 minutes 10 seconds and the information

recorded was to the effect:-

"Caller Bol Rahi Hai Ki Mere Sath Kisi Ne Galat Kaam Kiya Hai Need Police",

and on the next day i.e. on 20.03.2020, the name of the victim got

changed to „A‟, in relation to this aspect, in as much as, the ERSS sheet

relied upon on behalf of the applicant as filed along with the

application, did not give the name of the victim and the name appeared

to have been removed with the fluid.

15. The applicant was directed to place on record the typed version of

the ERSS sheet which was however not placed on the record on behalf

of the applicant. The State, however, emailed the copy of the same and

the print out of the same has since been placed on the record which

gives the name of the victim on 19.03.2020 as being that of „A‟ i.e. the

prosecutrix and this contention thus raised on behalf of the applicant

that the victim had changed, cannot be accepted.

16. It was further submitted on behalf of the applicant that the mother

of the prosecutrix despite knowledge of the alleged incident on

19.03.2020 did not inform the police at the outset and rather took the

prosecutrix to the hospital where she herself was working as a Senior

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 Nursing Officer and she took her there despite the factum that there was

no medical attention required at that point of time. It has thus been

submitted on behalf of the applicant that this could only be to prepare a

good case and evidence in the form of the MLC before informing the

police to ensure the false implication of the applicant. It was further

submitted on behalf of the applicant that the MLC was got prepared by

the victim‟s mother and that itself falsifies the prosecution version and

brings forth that it was a concocted story.

17. It was submitted further on behalf of the applicant that though the

police was informed at 12.43 pm on 20.03.2020 and the Investigating

Officer reached the hospital and found everything in place and

converted the narration of the doctor in the MLC through a ruqqa and

sent the same to the police station for the registration of the FIR by

mentioning the time of the ruqqa on 20.03.2020 at 1.05 pm which also

brought forth the falsity of the prosecution version. Furthermore, it was

submitted on behalf of the applicant that despite the information having

reached the police for the registration of the FIR, the sister of the

prosecutrix „R1‟ sent further information to the police that someone had

done a wrong act with her and that there was no explanation qua this

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Signing Date:01.10.2020 17:02 call when „R1‟ was present at the GTB Hospital with the prosecutrix.

Inter alia it has been submitted on behalf of the applicant that the

alleged incident had taken place two years ago and the prosecutrix had

refused for her internal medical examination and thus, there was

nothing to ascertain whether the victim had any sexual intercourse or

not and that without any supporting evidence, the presumption of a

prima facie happening of a physical violation, cannot be drawn against

the applicant. Inter alia it has been submitted on behalf of the applicant

that the prosecutrix had failed to bring on record any of the photographs

in relation to her being in any compromising situation to support her

contentions which it was contended is fatal to the prosecution version.

18. It has further been submitted on behalf of the applicant that there

was an undue haste in the chain of events in which the victim was

medically examined, the case registered, the statement recorded before

the learned Magistrate and the arrest of the applicant within 20 hours of

the matter coming into light and that this itself indicated that the entire

incident was planted. It is further submitted on behalf of the applicant

that the prosecutrix has contended that she was violated 8-9 times from

December 2017 to January 2018 but gave only one specific date and

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 only two specific incidents before the learned Magistrate without any

date and that the prosecutrix had not narrated any recent incident

despite her having stated that the applicant continued a relationship with

her. Inter alia it has been submitted on behalf of the applicant that the

version put forth by the prosecutrix in the MLC to the doctor was not

spelt out in the FIR nor in her statement under Section 164 of the

Cr.P.C., 1973 in relation to the applicant having been allegedly in touch

with the prosecutrix and of the applicant having met the prosecutrix in

November 2017.

19. The applicant further submits that the aspect of the prosecutrix

having recounted the stated entire story to Ravikant, her step brother

and to her family, is missing in the statement under Section 164 of the

Cr.P.C., 1973 of the prosecutrix which itself indicates that the applicant

is an innocent boy and has been falsely implicated in the instant case

and that the entire investigation and the charge sheet are concocted. It

has further been submitted on behalf of the applicant that there are

several inconsistencies in the statement of the victim. Inter alia the

applicant has further submitted that the investigation has been

concluded, the charge sheet has been filed, both the families are

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 relatives and there can be deliberation between them and further

incarceration of the applicant being a young boy, would serve no useful

purpose. Inter alia the applicant submits that his personal liberties

cannot be compromised in terms of Articles 14 & 21 of the Constitution

of India and that the entire period of time since the registration of the

FIR registered on 20.03.2020 till date, has been of imprisonment for the

applicant which has tarnished his image and no useful purpose would be

served by further incarceration of the applicant who is not likely to flee

and there are no chances of his absconding, he having deep roots in

society and he being a permanent resident of Delhi.

CONTENTIONS OF THE STATE AND THE PROSECUTRIX

20. The State through arguments addressed on its behalf has

vehemently opposed the prayer made by the applicant and so has the

learned counsel for the prosecutrix submitting to the effect that the

averments made in the FIR, the statement under Section 164 of the

Cr.P.C., 1973 of the prosecutrix and even the statement made by the

prosecutrix at the GTB Hospital to the doctor explaining the trauma and

fear of the prosecutrix was after her alleged sexual molestation and

violation of her person and dignity by the applicant which itself

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 explains the silence of the prosecutrix in reporting the matter to the

police and the delay in registration of FIR is explained and does not in

any manner detract from the veracity of the prosecution version.

21. It has been submitted further on behalf of the State and the

prosecutrix that the allegations levelled against the applicant are gross

and grave and that the prosecutrix having been a minor at the time of

the alleged commission of the offence, the gravity of the offence is

multiplied. Inter alia the State has submitted that the applicant has

taken an undue advantage of being a person known to the prosecutrix

and her family and there exists no scope for any mitigation in the instant

case of the allegations levelled against the applicant.

ANALYSIS

22. On a consideration of the rival analysis submissions made on

behalf of either side and on a perusal of the record, it is essential to

observe that the prosecutrix was of 16 years of age at the time of the

alleged commission of the offence and has stated categorically through

her statement which forms the basis of the FIR, through her statement

under Section 164 of the Cr.P.C., 1973 and through her statement that

she has made at the GTB Hospital that she has been violated sexually

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 by the applicant without her consent and will. Though, there appears to

be some delay in registration of the FIR and delay in getting the

prosecutrix medically examined, (though the prosecutrix declined the

interval examination) the same itself does not suffice to negate the

prima facie allegations levelled against the applicant of having

allegedly raped the prosecutrix several times against her consent and

also otherwise having sexual molested her without her consent and as

per the MLC prepared at the GTB Hospital of his having taken

advantage of the knowledge of the fact as to when the prosecutrix

would be visiting her step brother Ravikant‟s house when both her

parents used to go out for work. Taking into account, thus the gravity

of the allegations levelled against the applicant which have been

reiterated by the prosecutrix through her statement made both at the

time of the registration of the FIR and her statement under Section 164

of the Cr.P.C., 1973 as well as to the doctor at the GTB Hospital despite

the variations therein, which variations however, do not detract from the

material allegations levelled by the prosecutrix of the applicant having

repeatedly raped her and sexually molested her against her will, which

in any event have to be tested at the anvil of cross examination during

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02 trial, there is no ground whatsoever for grant of bail to the applicant

presently.

CONCLUSION

23. The bail application is thus, declined.

24. Nothing stated hereinabove, shall however, amount to any

expression on the merits or demerits of the trial in the instant case.

ANU MALHOTRA, J.

th SEPTEMBER 16 , 2020 „neha chopra‟s

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 17:02