Delhi High Court - Orders
Mukul Thakur vs State & Anr on 24 May, 2022
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 4413/2021
MUKUL THAKUR
..... Petitioner
Through: Mr.Rajiv Mohan, Mr.Abhimanyu
Kampani, Mr.Samarth Teotia, Mr.ohit
Joshi, Mr.Abhay Sachan, Advocates.
versus
STATE & ANR.
..... Respondents
Through: Ms.Nandita Rao, ASC with
Ms.Aashaa Tiwari, APP for State and
SI Shabnam Saify, PS Connaught
Place.
Mr.Mohit Mathur, Senior Advocate
with Mr.Sandeep Devashish Das,
Ms.Anandini Kumar Rathore,
Ms.Mehak Sood, Mr.Harsh Gautam,
Advocates for R2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 24.05.2022
1. This petition is filed by the petitioner with the following prayer:
"a. Direct the release of the Petitioner Mukul Thakur on bail in relation in to the instant case bearing FIR No. 61/2013 PS Connaught Place."
2. The brief facts are, the mother of prosecutrix was deserted by her husband when the prosecutrix was a child. Her mother then started living at her parents house in Darbhanga, Bihar. She was mentally unsound and was not capable of taking care of prosecutrix. Then maternal grandmother (Nani) of prosecutrix ensured her well being till she was alive, but she unfortunately she expired on 28.06.1994. Her entire family come together Signature Not Verified Digitally Signed By:PRADEEP SHARMA BAIL APPLN. 4413/2021 Page 1 of 6 Signing Date:26.05.2022 10:59 for cremation ceremony of the grandmother of the prosecutrix at Darbhanga. The prosecutrix was 9 years old at that time. One night her uncle (mausa) Shashi Shekhar Thakur called her and her cousin sisters to tell them stories after dinner in a corner and after her cousins had gone to sleep, Shashi Shekhar lifted her clothes and her undergarments and fumbled with her private parts. She was threatened not to tell anyone about the incident. Her aunt (mausi) Meera Thakur w/o Shashi Shekhar Thakur came with a proposal she can live at their house in Muzaffarpur, Bihar which was accepted by everyone. Hence while her mother continued to stay at her maternal grandparents' house, she was brought to her uncle Shashi Shekhar's Home in Muzaffarpur for further studies, where she was always made to sleep on the first floor which room was occupied by Shashi Shekhar Thakur. Thus, Shashi Shekhar Thakur who was her guardian had free access to abuse her sexually at his own house. Shashi Shekhar Thakur abused her sexually and raped her on regular basis till the time she stayed at his house. Her Mausi Meera Thakur w/o Shashi Shekhar Thakur use to force her to sleep with him. While she was 13 years of age, Mukul Thakur who also used to stay in the same house started abusing her sexually and use to make physical relation with her. When she was 17 years of age, she missed her menstrual cycles. On checking, she found she was pregnant. She told about this to Shashi Shekhar Thakur who gave her homeopathic pills for abortion. Finally in March 2006, all her family members were told about her continuous sexual exploitation and rape by Shashi Shekhar Thakur. No one stood in her support first and doubted her story. However, she was promised by her mama and nanaji some legal action would be taken against culprit, but no action was ever taken. All her family members have been Signature Not Verified Digitally Signed By:PRADEEP SHARMA BAIL APPLN. 4413/2021 Page 2 of 6 Signing Date:26.05.2022 10:59 pressurizing her to forgive and forget all had happened to her, but she refused and on her complaint, the case was registered vide FIR No.61/13 in PS Connaught Place, New Delhi.
3. During the course of Investigation medical examination of the prosecutrix was conducted. The prosecutrix also corroborated her statement in front of doctor at the time of her medical examination. During the course of investigation prosecutrix/complainant produced one video recorder along with one battery, Kingston Micro SD adaptor, one black button camera, three compact discs (containing conversation with Shashi Shekhar Thakur and Mukul Thakur in CD) and the same was sent to FSL Rohini for examination. The examination result was obtained from FSL Rohini in which examiner had described the files in CD are of same format as will be made by the given Instrument and there is no indication of alteration in the identified video shoots on the basis of frame by frame examination using video analyst system. Heard.
4. It is however, the submission of the learned counsel for the petitioner the alleged incident happened in the year 1994 till 2006 when the prosecutrix was only nine years old and she leveled the allegations of rape against her relatives, including the petitioner herein. It is stated despite such incident allegedly taken place in the year 2006 she lodged the FIR on 24.04.2013 after a delay of seven years, when she was married and was residing with her husband. The petitioner in the present case was arrested on 13.01.2013 but was discharged on 03.07.2013. The order on discharge was confirmed by this Court but in SLP filed by the prosecutrix/State both the orders of learned Session's Judge and of this Court were set aside and the Hon'ble Supreme Court directed re-trial of the case.
Signature Not Verified Digitally Signed By:PRADEEP SHARMA BAIL APPLN. 4413/2021 Page 3 of 6 Signing Date:26.05.2022 10:595. Once again the petitioner herein was taken into custody on 09.01.2017 and is in custody till date. The learned counsel for the petitioner submit the petitioner would be sentenced for a minimum period of seven years which may extend to life or which term may extend to ten years and hence as he has completed more than half of his sentence, he be released on bail. Section 376(1) IPC runs as under:
"(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 unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years."
6. He referred to guidelines given by the Hon'ble Supreme Court in Supreme Court Legal Aid Committee vs. Union of India and Ors. 1994 (4) SCALE 452:
"15. xxxxxx We, therefore, direct as under:
(i)Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.
(ii)Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.
(iii)Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a Signature Not Verified Digitally Signed By:PRADEEP SHARMA BAIL APPLN. 4413/2021 Page 4 of 6 Signing Date:26.05.2022 10:59 minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.
(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 3 1 and 3 1 A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order."
7. Such guidelines were followed in Atul Aggarwal vs. Directorate of Revenue Intelligence 2021 SCC OnLine Del 5489, the cases under NDPS Act where the minimum punishment was ten years which may go to twenty years and where the accused had completed nine years of custody was granted bail, relying upon the guidelines in Supreme Court Legal Aid Committee (supra).
8. Similarly, in Anil Kumar @ Nillu vs. State in BAIL APPLN.1724/2021 decided on 21.03.2022, relying upon the guidelines, the accused was granted bail.
9. I have heard the arguments, I may note the directions given in Supreme Court Legal Aid Committee were in different context where in Mumbai large number of NDPS cases were detected and the prosecutions were lodged and the issue was as to if cases filed after 29.05.1989 be tried by a Special Court or by a Session's Court. It was only because of delay in disposal of such NDPS cases, such directions were given, whereas in BAIL APPLN.336/2021, filed by the co-accused, he rather admitted there has been no delay in trial of the present case. Secondly, the judgments rendered to above were, primarily, under the NDPS Act but here is a case of incest where a nine years old girl living separately from her mother, under the care and custody of her relatives including the petitioner was sexually assaulted by them. She had nowhere to go and only when she attained her majority, Signature Not Verified Digitally Signed By:PRADEEP SHARMA BAIL APPLN. 4413/2021 Page 5 of 6 Signing Date:26.05.2022 10:59 went separate to study and then married, she got courage and was able to file the present complaint. The facts do show even if she had disclosed these facts to her other relatives, they all discouraged her and rather advised her to forget everything.
10. Admittedly the status report reveal the complainant had produced video clippings and three CDs containing the conversation between the two accused persons with her. The opinion has been obtained from FSL, Rohini and it is positive.
11. Considering the entire gamut of facts, I may say in cases of incest, the judgments cited may not have a bearing, specially, when in this case the punishment may be extended even till life. The quantum of half of punishment thus cannot be determined. Lastly the trial of the case is at fag end. The final arguments are being heard but then there is an application moved for recalling two or three witnesses, necessary to decide a relevant issue and though decided by the learned Trial Court, is yet pending in this Court in CRL.M.C.2310/2021.
12. Thus considering the above facts I am not inclined to grant bail to the petitioner herein. The petition thus is dismissed. Pending application(s), if any, also stand disposed of.
YOGESH KHANNA, J.
MAY 24, 2022 DU Signature Not Verified Digitally Signed By:PRADEEP SHARMA BAIL APPLN. 4413/2021 Page 6 of 6 Signing Date:26.05.2022 10:59