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LAXMI GUPTA & ORS Petitioner Represented by: Mr. Sachin Dev Sharma, Adv.
:
Mr. Javed Khan, Adv. for complainant.
ASHISHSHARMA..... Petitioner Representedby: Mr. SachinDev Sharma, Adv.
Mr. Javed Khan, Adv. for complainant.
15.11.2016
ORDER
1. By Bail Application No.1884/2015 Laxmi Gupta, Devendra Gupta & Naresh Gupta and by Bail Application No. 2627/2015 Ashish Sharma seek BAIL APPLNs. 1884/2015 &2627/2015 2016:DHC:8337 anticipatory bail in case FIR No.329/2015 under Sections 376-D IPG and Section 6of Protection of Children from Sexual Offence Act (in short POCSOAct).
2. Learned counsel for the petitioner states that by lodging afalse case the petitioners have been implicated in the above-noted FIR. The complainant is habitual of lodging false complaints against various persons alleging sexual harassment and demanding money. For the incident dated March, 2015 a complaint was lodged by the prosecutrix at PS Prasad Nagar, however there was no allegation of rape in the said complaint. Thus the allegation of rape are clearly an after-thought. Further the prosecutrix is related to,the petitioners and the two families have strained relationships.
3. The prosecutrix has also filed applications being Crl.M.A. Nos. 16985/2016 and 16986/2016 seeldng withdrawal of the interim protection in view of the subsequent conduct of the petitioners whereby a FIR has been lodged on the complaint of the prosecutrix since she was assaulted by the petitioners.
4. The facts leading to the registration of the above^noted FIR are that a PGR call was received on 4*'' March, 2015 at 10.20 PM at PS Vijay Vihar alleging an incident of rape with a mirior girl. The prosecutrix was taken to the hospital wherein she was examined arid gave history of sexual assault. The hymen was found to be not intact. Statement of the prosecutrix was recorded in which she alleged that she was raped by her cousin Ashish for the last two and a halfmonths. On 2"'' March, 2015 she was forcibly raped by Vicky i.e. Deverider Gupta at her aunt Laxmi's house in the presence of her cousin Ashish, her aunt Laxmi and Naresh Gupta and a video of the BAILAPPLNs. 1884/2015 2627/2015 incident was prepared.
5. Statement ofthe prosecutrix was recorded under Section 164 Cr.P.C. on 5'^March, 2015 where she reiterated her version. The date ofbirth of the prosecutrix mentioned in the school record was revealed to be 25"^ October, 1998. Thus at the time ofthe alleged incident she was aminor. The prosecutrix had also given acomplaint on 1®' March, 2015 at PS Prasad Nagar. The investigating officer ofP,S Prasad Nagar. found that on 2"^ and 3^" March, 2015 aquarrel took place between Smt Usha Gupta, her cousin Sanjay Gupta ^d victim on one side and Smt. Laxmi Gupta, her family members and sons of Smt. Usha Gupta namely Sagar and Ashish on the other side on which finally aKalandra was prepared under Section107/150 Cr.P.C. In the Kalandra Laxmi Gupta stated that her sister Usha Gupta did not keep her children Ashish and Sagar with her due to which they were living with Laxmi Gupta. It is further alleged that Usha Gupta along with her cousin Sanjay Gupta and Kis daughter, the prosecutrix came to her house and pressurised her to take away her children with her but the children were notwilling to accompany hermother.
6. During the course ofinvestigation telephones were seized and have been sent to CFSL, Hyderabad for analysis and opinion. From the vaginal swab ofthe prosecutrix the DNA generated did not relate to accused Ashish or Devender @ Vicky. Xhus though there niay be prima facie some substance in the contentions ofthe petitioner, however it is further revealed that on 22 August, 2016 FIR No.522/2016 has been registered at PS; Punjabi Bagh under Sections 308/341/506/34 IPC on the complaint of the ' prosecutrix wherein she stated that on 22"'' August, 2016 at about 6.15 PM BAILAPPLNs. 1884/2015&2627/2015 Ashish and I^aresh Gupta came to her house and abused her where after Ashish attacked her with a hammer and both Ashish and Naresh,Qupta started abusing her. MLC ofthe prosecutrix was prepared which revealed contused lacerated wound on the p^ieto occipital region ofthe prosecutrix. Further inter-se the parties there are number ofcases registered.
7. Considering the facts and circumstances ofthe case and particularly the subsequent conduct of the petitioners! do not find it to be a fit case,for grantof the anticipatory bail to thepetitioners.
8. Petitions and applications are accordingly dismissed.
MUKTA GUPTA, J. NOVEMBER 15,2016 'ga' BAILAPPLNs. 1884/2015& 2627/2015 page 4 pf[4]