Saurabh Tripathi vs State Of Nct Of Delhi
2023 Latest Caselaw 3668 Del

                          $~
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                Reserved on: September 06, 2023
                                                            Decided on: September 12, 2023
                          +      BAIL APPLN. 2660/2023

                                 SAURABH TRIPATHI                          ..... Petitioner
                                             Through:           Mr.     Prashant        Ghai,
                                                                Mr. Yasharth Jayant Lal
                                                                and Mr. Simontini Poul,
                                                                Advocates.
                                                   V

                                 STATE OF NCT OF DELHI           ..... Respondent
                                              Through: Ms. Rupali Bandhopadya,
                                                       ASC with Mr. Akshat
                                                       Kumar and Mr. Abhijeet
                                                       Kumar, Advocates for State
                                                       along with SI Sandeep
                                                       Kumar, P.S. Uttam Nagar,
                                                       New Delhi and SI Ekta, P.S.
                                                       Dabri.

                                 CORAM
                                 HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

                                 JUDGMENT

1. The present petition is filed under section 439 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as "the Code")

read with section 482 of the Code on behalf of the petitioner Saurabh

Tripathi for grant of bail in FIR bearing no.0733/2020 dated

11.08.2020 registered under section 376 of the Indian Penal Code,

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 1 12:02:02 1860 (hereinafter referred to as "IPC") and section 6 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as "POCSO Act") at P.S. Uttam Nagar.

2. The present FIR was got registered on the basis of complaint

made by the mother of the victim wherein she stated that the

petitioner used to give tuitions to the children of the locality. The

complainant sent her daughter i.e. the victim to the house of the

petitioner for taking tuitions. The complainant left the victim on

10.08.2020 at 4:00 PM at the house of the petitioner for tuition and at

that time, the petitioner was alone at his home. The victim came back

at 5:30 PM and stated to the complainant that she does not want to

take tuitions from the petitioner and thereafter, the complainant made

enquiries. The complainant also saw that there were blood stains on

the clothes of the victim and on being asked, the victim started crying

loudly and stated that the petitioner had pulled down her lower

(pyjami) and underwear (kachhi) and thereafter, inserted his private

part into the private part of the victim. Thereafter, the complainant

went to the house of the petitioner to make enquiries who stated that

he had received injury on his leg due to which blood oozed out and

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 2 12:02:02 stained the underwear of the victim. The husband of the complainant

came back home at 9:00 PM and thereafter, the complainant and her

husband along with the victim, came to the police station. The victim

was taken to DDU Hospital for medical examination. The

investigation was conducted. The statement of the victim was also

recorded under section 164 of the Code wherein the victim narrated

the incident happened on 10.08.2020 (Monday). The statement of the

victim recorded under section 164 of the Code on 13.08.2020 is

reproduced as under:-

Washroom wala, susu wala mere mein daal diya. Mere susu wala mein daal diya. Taareekh yaad nahi hai. Somwaar ko daala tha. Saurabh bhaiya ne daala tha. Vo tuition padhaate hain mujhe. Chaar baje jaati thi aur 5:00-5:30 baje aati thi. Tuition vale ke ghar mein daala tha. Ghar mein koi nahi tha. Aur bache bhi nahi the.

3. The petitioner was arrested on 11.08.2020. After investigation,

the charge-sheet was filed under section 376 IPC and section 6 of the

POCSO Act. Charges have already been framed vide proceedings

dated 29.09.2021 for the offences punishable under section 6 read

with section 5(m) and section 5(p) of the POCSO Act or in

alternative under section 376 IPC and the prosecution has already

examined the victim and the complainant.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 3 12:02:02

4. The petitioner filed a bail application bearing no. 33/2023,

which was dismissed vide order dated 20.07.2023 passed by the court

of Ms. Archana Beniwal, ASJ (FTSC)(POCSO)-01, South West,

Dwarka Courts, New Delhi. The relevant portion of the order dated

20.07.2023 is reproduced as under:-

After going through the aforesaid judgments relied upon in support of the arguments by ld. Counsel for the applicant/ accused, this court is of the view that the said judgments can be differentiated on facts from those of the present case. In the instant case, though the testimony of the child victim has been recorded, several other material witnesses are yet to be examined and there is every possibility of the accused influencing or threatening the witnesses of the prosecution, especially the family of the child victim, since both the family of the applicant/accused and the child victim reside in the same locality, near to each other. The child victim was the student of the accused/applicant and he was in a relationship of trust with the victim who was merely 08 years of age on the date of the incident. She has identified him as the perpetrator of the alleged offence while recording her testimony in the court after he was asked to wear spectacles, since the incident had occurred almost two and a half years before the examination in chief of the child victim and she was seeing the accused after such a long time and had stated during her testimony that the perpetrator used to wear spectacles and as soon as the accused/applicant wore spectacles, she immediately identified him. If the child victim was tutored, she would have identified him on the very first instance, even without his spectacles.

Further, contrary to the submissions of the ld.

Counsel for the defence, both the MLC as well as the FSL report support the case of the prosecution. As per the FSL

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 4 12:02:02 report, DNA profile of the accused was found matching from the DNA (semen stains) found on the top, lower and underwear of the child victim. The MLC also shows blood stains over top and lower of the child victim and no semen could be found on the body/private parts of the child victim as she has washed her genitalia before her medical examination. The medical examination was conducted at 1.17 AM, almost after 08 hours of the incident, explaining why there was no bleeding at the time of her medical examination.

Further, the child victim who is present in court today, has also stated, 'usko dekh ker dar lagata hai', showing that she is still undergoing mental trauma at the very sight of the accused, who lives in the same locality (as the applicant/accused has been released on interim bail on several occasions). The same is also reflected in her examination in chief recorded on 22.02.2023, wherein the testimony of the child victim was deferred as she got uncomfortable during her testimony and wanted to go back home.

Considering the above mentioned facts and circumstances, the court does not deem it fit to release the accused on bail. Hence, application u/s 439 Cr.P.C is dismissed.

5. The counsel for the petitioner, in the present petition, sought

grant of bail to the petitioner on the grounds that the petitioner is in

judicial custody since 17.08.2020 and after completion of

investigation, the charge-sheet has already been filed. The victim has

already been examined as such there is no possibility of tampering of

evidence. The petitioner has never violated any condition of the

interim bail as and when granted. The victim and the petitioner are

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 5 12:02:02 not living in the same locality. The victim has been tutored by her

mother. The victim has not given the details of the alleged incident in

her statement under section 164 of the Code recorded on 13.08.2020.

The victim also repeated the same allegations without additional

details in her examination-in-chief recorded on 22.02.2023. The

MLC and the FSL report also do not support the case of the

prosecution. The counsel for the petitioner during arguments, referred

MLC of the petitioner and victim. The counsel for the petitioner also

raised other grounds and prayed that the petitioner be granted bail.

6. The Additional Public Prosecutor for the respondent/State

stated that after considering the manner in which the offence was

committed and the gravity of offence, no ground for bail is made out.

The Additional Public Prosecutor further stated that the FSL report is

also supporting the prosecution version.

7. In the present case, after conclusion of investigation, the

charge-sheet has already been filed. The charges have already been

framed. The complainant and the victim have already been examined.

The petitioner was granted interim bail during the trial and

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 6 12:02:02 surrendered before the concerned authority after expiry of the interim

bail.

8. The perusal of FIR and the statement of the victim under

section 164 of the Code reflect that the petitioner has committed

penetrative sexual assault on the victim, who was aged about just 8

years at the time when the offence was committed. The petitioner

was a tutor and the victim was sent to him for taking tuitions. It is

mentioned in the MLC of the petitioner that no fresh external injury

was seen on the person of the petitioner. The MLC of the victim

reflects that when she was taken to the hospital, her vitals were

normal and no external injury was found. However, the complainant

has given the history to the concerned doctor by stating that on

10.08.2020 at about 4 PM, the victim was physically and sexually

assaulted by her tuition teacher i.e. the petitioner with history of

vaginal penetration. As per the FSL report, human semen was

detected on the clothes of the victim i.e. the top, lower (pyjami) and

underwear as well as on the bedsheet. The DNA profile generated

from the blood gauze of the accused i.e. the petitioner was found to

be matching with the DNA profile generated from the clothes of the

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 7 12:02:02 victim i.e. the top, lower (pyjami) and underwear and the bedsheet.

The arguments advanced by the counsel for the petitioner that the

FSL report and MLC pertaining to the petitioner and the victim do

not support the case of the prosecution is without any basis.

9. The counsel for the petitioner also cited judgment dated

07.05.2018 passed by Coordinate Bench of this Court in BAIL

APPLN. 599/2018 titled as Ramkishan @ Sonu V State and the

judgment dated 08.01.2020 passed by Coordinate Bench of this Court

in BAIL APPLN. 18/2020 titled as Sanjay Mahalwal V State of

NCT of Delhi and by referring to these two judgments, the counsel

for the petitioner also stated that under similar circumstances,

Coordinate Benches of this court have granted bail to the accused.

10. In the case titled as Ramkishan @ Sonu V State, it appears

that the petitioner i.e. the accused and the prosecutrix were known to

each other and the petitioner/accused had picked up the prosecutrix to

take her to attend the birthday party of the friend of the

petitioner/accused. In the present case, the victim was sent to the

petitioner only for taking tuitions and they were not having any

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 8 12:02:02 acquaintance with each other. The facts of the Ramkishan @ Sonu

V State are not similar to the facts of the present case.

11. The perusal of judgment passed in Sanjay Mahalwal V State

of NCT of Delhi reflects that the petitioner/accused was neither

named in the FIR nor in the statement of the prosecutrix under

section 161 of the Code. In the said case, the prosecutrix and the

complainant i.e. the mother of the prosecutrix denied the version of

the prosecution in their statements recorded under sections 161 and

164 of the Code and deposed against the accused due to the threats

and pressure exerted by the police officials. In the present case, the

victim in her statement under section 164 of the Code and in

deposition before the court, supported the case of the prosecution and

also identified the petitioner as the person who committed the

offence. The complainant i.e. the mother of the victim also supported

the version of the prosecution in the FIR as well as in her deposition

before the court, as such, the facts of Sanjay Mahalwal V State of

NCT of Delhi are not similar to the facts of the present case.

12. After considering the gravity of the offence and the manner in

which the offence was committed, no ground for bail is made out.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 9 12:02:02 Hence, the present bail application stands dismissed along with

pending applications, if any.

DR. SUDHIR KUMAR JAIN (JUDGE) SEPTEMBER 12, 2023 N/AM

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 BAIL APPLN. 2660/2023 Page 10 12:02:02