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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on : 18.01.2022

% Pronounced on : 26.04.2022

+

BAIL APPLN. 3468/2021

AVINASH

..... Petitioner

Through:

Mr. Tushar Datta and Mr. Varun

Gupta, Advs.

versus

STATE OF N.C.T. OF DELHI

..... Respondent

Through:

Ms. Neelam Sharma, APP for the

State.

CORAM:

HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

ORDER

RAJNISH BHATNAGAR, J.

1. This is a petition filed by the petitioner under Section 439 Cr.P.C.

seeking regular bail in FIR No. 326/2017 under Section 376 IPC and Section

6 of the POCSO Act registered at Police Station Govindpuri.

2. In brief the facts of the case are that on 18.08.2017, a PCR call vide

DD No, 11A, regarding a neighborhood man sexually assaulting caller’s 2.5

yrs old daughter was received at P.S. Govind Puri. The call was marked to

SI Radhe Shyam, he alongwith Ct. Chuttan No. 3201/SE reached at the

place of incidence i.e, C-34, Bhumiheen Camp, Govindpuri and met the

complainant Dinesh Dev Nath Rai (Father of victim) and inquired about the

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001500

matter. The complainant also produced the accused Avinash (Petitioner

herein). SI Radhe Shyam returned to P.S. along with the complainant Dinesh

Dev Nath Rai, accused Avinash and Prosecutrix V. The call was then

marked to SI Pooja who sent prosecutrix V alongwith W/Ct Sevarathi No.

1155/SE to AIIMS hospital for medical examination. The medical of

prosecutrix V was conducted vide MLC No. 7273/17 in which Dr had stated

“Alleged history of sexual assault by a neighbor friend of her father at 3:30

AM (18.08.17) history given by father complaining that the girl was taken

by his friend upstairs, who was sleeping with him and removed her clothes

and attempted fingering and physical violence. There is “3*2 CM

hemtrauma over occipital region and C/o bleeding from Vagina”. After

medical, prosecutrix alongwith W/Ct Sevarathi No. 1155/SE came to PS.

3. During course of investigation the statement of complainant Dinesh

Dev Nath Rai was recorded in which he alleged that his friend Avinash

physically assaulted his daughter who is only 2.5 yrs old in night when they

were sleeping at his residence. Thereafter, a case u/s 376 IPC and 6 POCSO

Act was registered at PS Govindpuri on the statement of complainant. The

site plan was prepared by the IO and statement of victim and her father was

recorded u/s 161 CrPC. The petitioner/accused Avinash S/o Abhi Ram

Mistary R/O Gaon Mural Tikonia, Bangali Colony Gwalior, MP was

arrested on 18.08.2017 and medical examination at AIIMS got conducted

vide MLC No. 500042194/17.

4. I have heard the learned counsel for the petitioner, learned APP for

the State and perused the status report filed by the state.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001500

5. It is submitted by the learned counsel for the petitioner that petitioner

is in judicial custody since 18.08.2017 and has undergone more than 4 years.

It is further submitted that the petitioner has been falsely implicated in this

case as the complainant has stated in his cross examination that the

petitioner/accused knew that his wife had left him and she was having an

affair with someone else and petitioner had made fun of complainant on the

same pretext and thus, complainant got angry and slapped the petitioner. It is

further submitted that the complainant has stated in his cross examination

that petitioner has not done anything wrong with PW-2 (daughter of the

complainant). It is further submitted that the MLC no.7273/2017of the

victim clearly mentioned that no active bleeding was found and evenat the

time of Examination-in-Chief conducted on 04.10.2018 before thecourt of

Sh. Prem Kumar Barthwal, Ld. ASJ-01-SE, Special Court(POSCO), Saket

Court, New Delhi of Dr. Anshu Yadav, SeniorResident, AIIMS Hos