Vicky Kashyap v. State of NCT of Delhi

1. By way of the instant application, the applicant seeks grant of regular bail in case arising out of FIR bearing no. 582/2021, registered at Police Station Moti Nagar, Delhi, for the commission of offence punishable under Section 342/376(2)(i)(n)/354(C)/505-II of the Indian Penal Code, 1860 [hereafter „IPC‟] and Section 6/12 of the Protection of Children from Sexual Offences Act, 2012 [hereafter „POCSO Act‟].

2. Briefly stated, the facts of the present case are that on 24.09.2021, a PCR call vide DD No. 53A was received at P.S. Moti Nagar, Delhi, regarding the incident of molestation of a child. On reaching the spot, the police officials found that the matter pertained to sexual assault of a minor girl. A counsellor was called and the prosecutrix was medically examined vide MLC No. 7469/21. The prosecutrix submitted a written complaint alleging that on the same day at about 9:00 AM, the present accused Vicky Kashyap had taken her to a room on the pretext of talking and had committed sexual assault upon her. The incident came to light when the mother of the prosecutrix searched for her and reached the accused‟s house. On the basis of the complaint, counselling report, and MLC, an FIR was registered for offence under Section 376AB of IPC and Section 6 of the POCSO Act. Upon completion of investigation, the charge-sheet was filed, and the matter is presently pending trial.

3. The learned counsel for the applicant argues that the applicant has been falsely implicated and has been in judicial custody since 27.09.2021, despite the investigation having been completed and the material public witnesses having already been examined. It is argued that only formal witnesses remain, and therefore there is no possibility of the applicant influencing the prosecution evidence. The learned counsel contends that the case rests solely on the testimony of the prosecutrix, which suffers from material contradictions, inconsistencies, and subsequent improvements, rendering it unreliable and suggestive of tutoring, particularly by the mother of the prosecutrix. It is further urged that there was an unexplained delay of several hours in making the PCR call and in lodging the FIR, which casts doubt on the prosecution version. The medical evidence is stated to be inconclusive, as the MLC records no injuries or signs consistent with sexual assault, and the FSL report is silent with regard to male DNA. It is also argued that although the prosecutrix alleged that accused had videographed the alleged sexual acts, no such material has been found despite the mobile phone of accused having been sent to FSL. He further submits that the mother of the prosecutrix was in a consensual physical relationship with the accused and that the accused had been financially assisting her family, which relationship was resented by the prosecutrix, leading to a false implication of the accused. The learned counsel also contends that the incident is alleged to have occurred during the Covid-19 period in the year 2021, when movement of people was restricted and social interaction was minimal, and therefore, according to him, the likelihood of the alleged offence having been committed in the manner projected by the prosecution is doubtful. Thus, it is prayed that the present applicant be released on regular bail.

4. The learned APP for the State strongly opposes the bail application and submits that the allegations pertain to a grave sexual offence against a minor. It is argued that the prosecutrix has consistently supported the prosecution case in her complaint, in her statements under Sections 161 and 164 of Cr.P.C., and also in her testimony before the learned Trial Court, which lends strong primafacie credibility to her version. The learned APP contends that in cases involving child sexual abuse, the testimony of the victim, if consistent and trustworthy, is sufficient at this stage to deny bail, and issues relating to delay, medical opinion, or alleged contradictions are matters for trial. Considering the seriousness of the offence, the statutory scheme of the POCSO Act, and the stage of trial, the learned APP prays that the bail application be dismissed.

5. This Court has heard arguments addressed by learned counsel for the applicant and learned APP for the State, and has perused material on record.

6. The allegations against the present applicant/accused, in brief, are that he is alleged to have taken the minor prosecutrix away from her home on a false pretext, confined her at a place, and forcefully established physical relations with her. It is alleged that the prosecutrix was subsequently traced and rescued by her family members, and that the applicant left the spot thereafter.

7. Having heard the learned counsel for the parties, this Court is of the opinion that the mere fact that the alleged incident occurred during the period of the Covid-19 pandemic cannot, by itself, be a ground to presume that the offence could not have been committed or to disbelieve the version of the prosecutrix. This Court also takes note of the undisputed fact that the prosecutrix was of tender age, being about 12-13 years at the relevant time. She has consistently supported the prosecution case and has clearly described the manner in which the incident of sexual assault took place in her statement to the police, her statement recorded under Section 164 of Cr.P.C. before the learned Magistrate, as well as in her testimony before the learned Trial Court.

8. The learned counsel for the applicant sought to contend that the mother of the victim was in a consensual relationship with the applicant, which the prosecutrix allegedly did not approve of, and that the applicant has therefore been falsely implicated. In the opinion of this Court, such a contention does not provide any ground to doubt the testimony of the victim. Even assuming, for the sake of argument, that the mother of the victim had a consensual relationship with the accused, the same cannot lead to an inference that the applicant could not have committed sexual assault upon the minor child. The prosecutrix has categorically stated that the accused, who was familiar to her and known to her family, had called her to his room on a false pretext and had forcefully established physical relations with her.

9. In fact, the admitted familiarity of the accused with the prosecutrix and her family lends support to the prosecution version, at this stage, that the prosecutrix trusted the accused and therefore accompanied him. The prosecutrix has repeatedly stated that she used to address the accused as „chacha‟, as he was known to her mother, which further indicates the position of trust that the accused occupied.

10. This Court also finds merit in the observation of the learned Trial Court that although a detailed analysis of the testimony of the victim is not warranted at the stage of consideration of bail, a prima facie assessment of the same is permissible, particularly when the testimony has already been recorded and cross-examination has been conducted.

11. Moreover, the learned counsel for the applicant has himself relied upon the statements and testimony of the prosecutrix and other witnesses to argued that the said statements suffer from inconsistencies.

12. This Court has perused the statement of the prosecutrix, which further reveals that she was about 12 years of age at the time of the incident. She has alleged that the accused had repeatedly committed aggravated penetrative sexual assault upon her, videographed the acts on his mobile phone, confined her, and threatened her with dire consequences if she disclosed the incident to anyone.

13. Ms. „S-1‟, the mother of the prosecutrix, in her testimony has stated that when her daughter did not return home on the date of incident, she was informed that the present applicant Vicky had taken the prosecutrix on his scooty. She had traced him to his factory at Basai Darapur, where he initially denied any knowledge of the prosecutrix but later disclosed that she had been kept in a room. The prosecutrix was found confined in the washroom, rescued, and upon being freed, she had disclosed that the accused had taken her on a false pretext and had forcefully established physical relations with her. The accused had fled from the spot, after which the prosecutrix was taken home and the police was informed, leading to her medical examination.

14. The record also discloses that the bua of the victim has corroborated the prosecution case and has deposed before the learned Trial Court that when she, along with the mother of the prosecutrix, had gone in search of the prosecutrix, she was found at the room of the accused, and the accused had fled from the spot.

15. The submission made on behalf of the applicant that the mother of the prosecutrix had visited the accused in jail or had allegedly accepted money from him does not, in the opinion of this Court, at this stage, dilute the gravity of the offence. The allegations are of sexual assault upon a minor, and the bail application has to be considered on the basis of the nature of the allegations, the material on record, and the consistent statements of the prosecutrix recorded before the police, the learned Magistrate, and the Court. The prosecutrix has consistently stated that the accused, whom she trusted and addressed as “Chacha”, a relationship akin to a father figure, subjected her to repeated sexual assault. The alleged conduct of the prosecutrix‟s mother, even if assumed to be correct, cannot be a sole ground to doubt the version of a minor victim. The offence complained of is against a child, and its seriousness cannot be assessed through the conduct of a third party. Where a minor has herself come forward and consistently disclosed abuse, the Court is duty-bound to accord due weight to her version while considering the prayer for bail.