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Sheikh Awaliya @Ahulliya vs State (Gnct Of Delhi) on 29 July, 2021

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2320/2021
SHEIKH AWALIYA @AHULLIYA ….. Petitioner
Through Mr. Anil Kumar, Advocate

versus

STATE (GNCT OF DELHI) ….. Respondent
Through Ms. Meenakshi Dahiya, APP with SI
Rakhi, PS Khajuri Khas

CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER

% 29.07.2021
HEARD THROUGH VIDEO CONFERENCING

1. This petition under Section 439 Cr.P.C is for grant of regular bail to
the petitioner in FIR No.129/2021, dated 25.03.2021, registered at Police
Station Khajuri Khas, for offences under
Sections 354 and 376 (AB) IPC
and
Sections 6 10 of the Protection of Children from Sexual Offences Act
(hereinafter referred to as ”the POCSO Act”).

2. The facts, in brief, leading to the instant case are as under:

a) On 25.03.2021, the victim gave her statement to the Police
wherein she stated that she is eight years old and studies in third class.
She stated that she used to go to the house of the petitioner, which is
near her house, for taking tuitions. It is stated that from the last three
months the petitioner used to touch her inappropriately and used to
place his hands on her private parts, which she did not like, but she did
not tell this to anybody out of fear. It is stated on 24.03.2021, at about

BAIL APPLN. 2320/2021 Page 1 of 8
10 PM, when she had gone to the petitioner’s house, for tuitions, the
petitioner placed his finger on her vagina. It is stated that after the
incident the victim felt very bad and she informed her mother about
the incident who then told the father of the victim about the incident.

b) On the basis of the statement of the victim, FIR No. 129/2021 was
registered at Police Station Khajuri Khas, for offences under
Sections
354/
376 (AB) IPC and Sections 6 10 of the POCSO Act.

c) The victim was examined by the Doctor wherein she repeated
whatever has been stated by her in the complaint. Statement of the
victim under
Section 164 Cr.P.C was recorded.

d) The petitioner was arrested on 26.03.2021. Charge-sheet has been
filed.

e) The petitioner filed an application for bail before the Sessions
Court which was dismissed by the learned Additional Session Judge-
01, North-East: Karkardooma, vide order dated 18.06.2021.

f) The petitioner has thereafter approached this Court by filing the
instant application for bail.

3. Heard Mr. Anil Kumar, learned counsel for the petitioner and Ms.
Meenakshi Dahiya, learned APP for the State and perused the material on
record.

4. Mr. Anil Kumar, learned counsel for the petitioner contends that a
reading of the FIR and the charge-sheet shows that a case under
Section 376
(AB) IPC and 354
IPC is not made out against the petitioner. He further
contends that the ingredients of Section 6 of the POCSO Act are also not
met. To substantiate his contention, the learned counsel for the petitioner

BAIL APPLN. 2320/2021 Page 2 of 8
relies on the statement of the victim given under
Section 164 Cr.P.C which
reads as under:

5. The learned counsel for the petitioner states that the victim is eight
years of age and her statement under
Section 164 Cr.P.C should be taken at
face value and no other meaning can be added to her statement just because
of her age. He further contends that on a reading of the statement under
Section 164 Cr.P.C of the victim, the ingredients of Section 375 IPC and
Section 3 of the POCSO Act are not made out.

6. Per contra, Ms. Meenakshi Dahiya, learned APP for the State

BAIL APPLN. 2320/2021 Page 3 of 8
contends that the petitioner is accused of a very heinous offence and the
victim has been repeatedly subjected to sexual assault by the petitioner for at
least three months prior to the filing of the complaint. The learned APP for
the State contends that the charges are yet to be framed and the possibility of
the petitioner threatening the witnesses or tampering with evidence cannot
be ruled out and hence the petitioner ought not be released on bail.

7. The purpose of introducing the POCSO Act was that the sexual
offences against children were not adequately addressed by the existing
laws. A large number of such offences were neither specifically provided for
nor were they adequately penalized. Such offences against children needed
to be defined explicitly and countered through adequate penalties as an
effective deterrence. POCSO Act provides for protection of children from
offences of sexual assault, sexual harassment and pornography with due
regard for safeguarding the interest and well being of children. The victim is
a small child of eight years of age. She has been traumatized by the
petitioner. The petitioner is accused of a very heinous offence under 376
(AB)
IPC and Sections 6 10 of the POCSO Act. Merely because the child
has stated that the petitioner used to put his hands on the vagina, by itself,
does not and cannot lead to a conclusion that penetrative sexual assault has
not been committed.

8. Penetrative sexual assault has been defined in Section 3(c) of the
POCSO Act which reads as under:

“3. Penetrative sexual assault.–A person is said to
commit “penetrative sexual assault” if–

*****

(c) he manipulates any part of the body of the

BAIL APPLN. 2320/2021 Page 4 of 8
child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or
makes the child to do so with him or any other
person; or………”

9. Rape has been defined in Section 375 IPC. Section 375(b) and
Section 376 IPC reads as under:

“375. Rape.- A man is said to commit “rape” if he –

*****

(b) inserts, to any extent, any object or a part
of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to
do so with him or any other person; or……..

*****

376. Punishment for rape.–

(1) Whoever, except in the cases provided for by
sub-section (2), commits rape shall be punished
with imprisonment of either description for a term
which shall not be less than seven years but which
may be for life or for a term which may extend to
ten years and shall also be liable to fine …..”

10. The Doctor in the MLC dated 25.03.2021 has observed that there is
slight redness present in the genitals of the victim. The fact that the hymen
of the victim appears to be intact or that there is no laceration or bleeding in
the vagina of the victim or that there is no laceration present near the anal
region of the victim is also not indicative, at this juncture, that penetrative
sexual assault has not been committed on the victim by the petitioner. The
victim is all of eight years and it cannot be concluded as to whether the
offence under
Section 375 IPC punishable under Section 376(AB) IPC and

BAIL APPLN. 2320/2021 Page 5 of 8
Section 6 and 10 of the POCSO Act are made out or not.

11. Whether the petitioner penetrated into the vagina of the victim using
his fingers or not and as to whether he is not guilty of an offence under
Section 376 (AB) and Sections 6 10 of the POCSO Act need not be gone
into at this stage.

12. The parameters of granting bail have been laid down by the Supreme
Court in a number of cases and has laid down the factors that must guide the
exercise of the power to grant bail.

13. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496,
the Supreme Court observed as under:

“9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does
not, normally, interfere with an order passed by the
High Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court
to exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles laid
down in a plethora of decisions of this Court on the
point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:

i. whether there is any prima facie or reasonable
ground to believe that the accused had
committed the offence;

ii. nature and gravity of the accusation;

iii. severity of the punishment in the event of
conviction;

iv. danger of the accused absconding or fleeing, if
released on bail;

BAIL APPLN. 2320/2021 Page 6 of 8

v. character, behaviour, means, position and
standing of the accused;

vi. likelihood of the offence being repeated;
vii. reasonable apprehension of the witnesses being
influenced; and
viii. danger, of course, of justice being thwarted by
grant of bail.

10. It is manifest that if the High Court does not advert
to these relevant considerations and mechanically
grants bail, the said order would suffer from the vice of
non-application of mind, rendering it to be illegal.”

14. The petitioner is accused of an extremely heinous offence. It is on the
statement of the victim that the FIR was recorded. The victim has reiterated
her statements before the Magistrate. There is thus a prima facie case and
the reason to believe that the petitioner has committed the offence. While
granting bail the Court need not go into the excruciating details and
evidence and conduct a mini trial. If the petitioner is convicted under
Section 376 IPC, he is liable to be sentenced imprisonment for a minimum
period of 20 years, which may extend to imprisonment for life, which means
imprisonment for the remainder of the person’s natural life or with death.

15. The petitioner was the tutor of the victim and has indulged in such
abhorrent acts. The offence which the petitioner is accused of will have the
effect of destroying the innocence of a child aged eight years and it shows
the extent of mental depravity of the petitioner. The charges are yet to be
framed. The possibility of the petitioner threatening the witnesses and
tampering with evidence cannot be ruled out and hence the petitioner is not
entitled to bail at this juncture.

BAIL APPLN. 2320/2021 Page 7 of 8

16. With these observations the bail application is dismissed.

SUBRAMONIUM PRASAD, J
JULY 29, 2021
Rahul

BAIL APPLN. 2320/2021 Page 8 of 8

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