Mohit Kumar VS State NCT of Delhi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

DELHI HIGH COURT
Prateek Jalan, J.
Mohit Kumar – Appellant
versus
State NCT of Delhi – Respondent
Bail Appln. 457 of 2022
Decided on 28.4.2022

Counsel for the Parties:
For the Appellant:Kanhaiya Singhal, Rishabh Jain, Chetan Bharadwaj, Priyal Garg and Anisha Singhal, Advocates
For the Respondent: Meenakshi Dahiya, APP, Amit Kumar, Shilpi Verma, Deepak Sharma and Party-in-Person

Headnote:
Criminal Procedure Code, 1973 – Section 439 – Indian Penal Code, 1860 – Section 354A – POCSO Act, 2012 – Section 10 – Sexual assault on minor of 3 years – No internal or external injury – Allegation of insertion of P’s finger in M’s private parts, not part of FIR – The petitioner seeks anticipatory bail for the alleged offences – P is entitled to be released on bail, the allegations concern an offence committed by P against his own daughter who was only 3 years 11 months of age – The allegation of insertion of P’s finger in M’s private parts, which is the foundational basis for the offences under Section 376 of the IPC, and Section 6 of the POCSO Act, also did not find place in the FIR originally filed – The medical examination, when conducted, did not reveal any external or internal injury – When the statement of M was recorded under Section 164 of the CrPC, she did not make any statement, and G has not permitted any further attempt to be made in this regard – While none of these may be conclusive factors at the stage of trial, at this stage, the Court has to keep all these elements in mind while deciding whether the continued incarceration of P is warranted – There is nothing in the status report to suggest that P is a flight risk or that he is likely to tamper with the evidence in any way – P is enlarged on bail. [Paras 23, 28].
Result: Bail Granted.

ORDER

Prateek Jalan, J.—By way of this application under Section 439 of the Code of Criminal Procedure, 1973 [“CrPC”], the applicant [hereinafter referred to as “P”] seeks regular bail in connection with FIR No. 254/2021, dated 15.09.2021, registered at Police Station Hauz Qazi, under Section 354A of the Indian Penal Code, 1860 [“IPC”] and Section 10 of the Protection of Children from Sexual Offences Act, 2012 [“POCSO Act”].

Facts

2. FIR No. 254/2021 was registered at Police Station Hauz Qazi on 15.09.2021 on the complaint of the applicant’s wife [hereinafter referred to as “G”]. The FIR originally mentioned offences under Section 354A of the IPC and Section 10 of the POCSO Act. P was arrested on 16.09.2021. Following G’s statements under Sections 161 and 164 of the CrPC, Section 376 of the IPC and Section 6 of the POCSO Act were added. After investigation, the charge sheet was filed, and charges under Sections 354A, 376 and 506 of the IPC and Sections 6 and 10 of the POCSO Act have been framed against P on 24.11.2021.

3. The allegations in the FIR are as follows:—

(a) G was married to P on 14.12.2016. They had a daughter [hereinafter referred to as “M”] on 11.11.2017.

(b) Although the attitude of P and his parents towards G changed after marriage and they used to beat and abuse G verbally, she tolerated it for the sake of her domestic life.

(c) After some days, being fed up with the situation, G separated her kitchen. P lived with his parents on the first floor of the matrimonial home, whereas G lived with her daughter M on the ground floor of the same property.

(d) On 07.07.2021, P took M upstairs as usual at around 8:30 PM and left her downstairs at around midnight.

(e) On the next day, when G was giving M a bath, M reported an incident of the previous day, which amounted to an allegation that P had removed her undergarments and touched her in the perineal region on the previous day. The perineal region of M was also a little swollen.

(f) G raised the matter with P the next day, who denied the allegation and started fighting with her, following which G reported the matter to the police.

(g) The police having failed to act, G gave a written complaint at the Police Station on 26.07.2021. The police called P and released him after counselling him.

(h) There was no change in P’s behaviour and G apprehended that he would indulge in such acts again. G therefore kept a watch on M but P insisted on taking her to the first floor, where he lived (alongwith his parents). On G protesting against P taking M upstairs, P threatened her with eviction from the residence and that her household goods would be thrown outside the house. The FIR records that inquiries were made with both G and M, and M corroborated the version of G.

4. M was medically examined at LNJP Hospital on 15.09.2021 and counselled by the counsellor of the Delhi Commission for Women [“DCW”]. M’s statement under Section 164 of the CrPC was sought to be recorded by the Metropolitan Magistrate [“Magistrate”] on 16.09.2021, who observed that the victim refused to answer any question and was sulking, by reason whereof the statement of the victim could not be recorded. It is stated in the charge sheet that an attempt was made to record the statement of M under Section 164 of the CrPC again, which was declined by G.

5. The statement of G was also recorded under Section 164 of the CrPC on 21.09.2021. In the said statement, G stated that she had matrimonial disputes with P. G made allegations of verbal and physical abuse against P and his parents. She recounted an incident of 14.02.2021, following which she was thrown out of the house alongwith her daughter, and she started living on the ground floor of the same property. As far as the incident of 07.07.2021 was concerned, G’s statement under Section 164 of the CrPC, as mentioned in the charge sheet, recorded an allegation of P inserting his middle finger in M’s private parts, in addition to the allegations recorded