Full Text
HIGH COURT OF DELHI
JUDGMENT
ROSHAN SINGH ..... Applicant
For the Applicant : Mr. D. K. Pandey, Mr. R. K. Mishra and
Mr. K. B. Patnayak, Advs. For the Respondents : Ms. Richa Dhawan, APP for State with SI
Aarti, PS Bh. Dairy.
Mr. Saurabh Kansal, Mr.Divyam Aggarwal, Mr.Shaurya Sharma, Ms.Pallavi Kansal and
Mr.Arjun Giri, Advs. for R-2.
1. The present application has been filed under Section 439 of Code of Criminal Procedure, 1973 (“Cr.P.C.”) on behalf of the applicant seeking regular bail in FIR No. 501/2020 dated 26.08.2020, registered under Section 376 Indian Penal Code,1860 (“IPC”) r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) at PS Bhalswara Dairy.
2. The FIR was registered on the complaint made by the prosecutrix/complainant, who alleged that she, herself, and the applicant are neighbours, living in the same locality and were friends with each other for around 3-4 months before the date of the incident. One night at around 1:00 a.m., the applicant had called the prosecutrix to his house, where he forcefully made physical relations with her. It is stated that both families had a compromise with regard to the said incident, and consequently, the applicant and the prosecutrix stopped talking to each other.
3. After the said incident, one fine day, the prosecutrix contacted the applicant, and they again started talking to each other for around a month. After that, the applicant allegedly called her to his house around 1:00 a.m. and forcefully tried to make physical relations with her. However, the prosecutrix’s family was unaware of the said incident.
4. It is further alleged that on the intervening night of 25.08.2020- 26.08.2020, at around 2:00 a.m., when the prosecutrix went to the terrace of her house to use the washroom, the applicant from his roof told her that somebody was lurking around the vehicle belonging to her family. Consequently, she quickly went outside to check the same, when the applicant grabbed her, took her to his house (room), and tried to make physical relations with her.
5. The prosecutrix’s mother in order to find her went to the applicant’s house, where the father of the applicant started looking for her in the whole house. As a result, the applicant’s father found the prosecutrix in the applicant’s room. After that, the applicant’s father took the prosecutrix back to her house.
6. Subsequently, the prosecutrix informed her family members about the said incident, which resulted in the registration of the present FIR.
7. The prosecutrix was medically examined (MLC No. 161619/20) on 26.08.2020 at Babu Jagjivan Ram Memorial Hospital, Delhi.
8. Thereafter, the statement of the prosecutrix was recorded under section 164 of the Cr.P.C. by the learned Metropolitan Magistrate, Rohini Court, New Delhi, on 27.08.2020. After the completion of the investigation, chargesheet was filed against the applicant for the offences punishable under section 376 of the IPC and section 4 of the POCSO Act on 07.10.2020.
9. The prosecutrix's examination and cross-examination was recorded in the vulnerable witness room on 22.11.2022.
10. Learned Counsel for the applicant submits that the charge sheet has been filed, and there is no material on record or evidence supporting the allegations. He submits that the entire case of the prosecution rests on the statement made by the prosecutrix, which is contradictory in nature.
11. He further submits that the prosecutrix was not a minor at the time of the incident.
12. He states that learned Additional Sessions Judge, by order dated 16.09.2020, had allowed the application for conducting the ossification test on the prosecutrix, but she refused the same. Hence, the benefit of her refusal for the same should go in favour of the applicant.
13. He further submits that the applicant and the prosecutrix were known to each other for a very long period of time, and the allegations were made when the parents of the prosecutrix came to know about their relationship. The applicant and the prosecutrix had stopped talking to each other until a month before the date of the incident.
14. He also states that the allegations levelled are of such nature which are not possible to have taken place. It is also stated that the prosecutrix had refused to undergo any internal body medical test. Further, the clothes and vaginal secretion were sent to FSL for DNA profiling and biological analysis, but the results of the said tests were found to be negative.
15. He further submits that the applicant is of a tender age of 18 years. The statement of the prosecutrix has already been recorded before the learned Trial Court, and there are no chances of the applicant either threatening the witness or tampering with the evidence. The applicant is also not at flight risk.
16. Learned APP for the State and learned Counsel for the prosecutrix vehemently oppose the grant of bail to the applicant on the lines of the status report.
17. Learned APP submits that the complainant was of tender age at the time of the alleged incident. She further states that there are serious allegations against the applicant, and the offence committed is of grave nature.
18. The Learned Counsel for the prosecutrix avers that as per the Aadhar card and report card of class 6th, the date of birth of the prosecutrix is 08.08.2006, and on the date of the alleged occurrence would be 14 years.
19. It is also alleged that besides the age, the applicant has made threatening calls to the complainant and her family members. Conclusion:
20. This Court, in order dated 14.10.2022, had recorded as under: “Prima facie, I am of the considered view that in this case, the applicant has been in custody from 26.08.2020 and the charge-sheet has already been filed and there is no more custodial interrogation required. However, the statement of victim/prosecutrix is yet to be recorded. I am informed that the next date before the Sessions Court is 15.11.2022 for recording of the statement of the victim. It is hoped and desired that the evidence of the victim would be concluded on the said date or at best immediately thereafter.”
21. This Court has already formed a prima facie view that the applicant is not required for further custodial interrogation. The bail, however, was not granted since the statement of the victim/ prosecutrix was not recorded by that time and there was an apprehension that the applicant, if released on bail, would threaten the witness.
22. The statement of the prosecutrix was recorded on 22.11.2022. The learned Counsel for the applicant has contended that there are contradictions in the statement made by the prosecutrix. He contends that the prosecutrix was known to the applicant and was always in good friendly terms. The room where it is alleged that the incident took place was at the upper floor of the house. The allegation that the applicant pulled the prosecutrix to the upper floor is doubtful.
23. It has specifically been noted in the charge sheet that the prosecutrix had averred that she had known the applicant for the last three to four months. It was also mentioned that on an earlier occasion also, she had gone to the applicant’s house and had physical relationship. The prosecutrix informed the same to her mother, and the matter was compromised after their families discussed it with each other. However, in her statement recorded on 22.11.2022, she refused that she gave any such statement.
24. The Hon’ble Apex Court in State of Bihar v. Rajballav Prasad, in relation to offences under the POCSO Act, has held that, while considering the application for bail at a post-charge stage, the Court also has to consider the provisions of Section 29 of the POCSO Act. Section 29 reads as under:
25. This Court in the case of Dharamander Singh @ Saheb v. The State (Govt. of NCT of Delhi): BAIL APPL. 1559/2020, had considered the aspect of presumption provided in Section 29 of the POCSO Act. It was held that while considering the application for bail even at a stage after charges have been framed, the impact of Section 29 would only be to raise the threshold of satisfaction required before a Court grants bail. The Court, therefore, is required to evaluate whether the evidence placed is credible or ex facie appears to support the case of the prosecution.
26. Certain considerations that have to be kept in mind while deciding the application in relation to offences under the POCSO Act are; the age of the minor victim vis-à-vis the age of the accused, the family relationship, if any, between the victim and the accused, whether the accused is a repeated offender, the chances of the accused threatening the victim after being enlarged on bail, etc.
27. From the perusal of the charge sheet and the statement recorded, it appears as under: a. At the time of the incident, the accused was around 19- 20 years of age (his date of birth being 15.11.1999). The victim, even though alleged to be of 14 years, it is contended that she was more than 16 years of age. She had also refused to undergo ossification test for the purpose of ascertaining the age. b. The victim, in her complaint had stated that she had known the accused for the last 2-3 months and was in a relationship with him. The initial complaint alleged that the applicant tried to make physical relations with the her. It was not alleged that the applicant made any physical relations with the prosecutrix. c. No injuries have been found on the body of the victim so as to point out any brutality. The FSL report also is in favor of the accused. d. The allegation that a young boy of 20 years of age had dragged the victim to the upper floor through stairs, at this stage, appears doubtful and would be a matter of trial. e. The victim has only stated that she was hidden under the bed. It is not alleged that she was tied and that she was prevented by the use of force to not call her parents or inform other people present in the building. f. The accused is in incarceration for more than two years, and the trial is unlikely to be complete anytime soon. g. It is not alleged that the accused is a repeat offender and is also not found to be involved in any prior criminal activity. h. Even though it is alleged that the accused has threatened the victim and, being neighbors, if enlarged on bail, would tamper with evidence or influence the witnesses, the same can be taken care of by putting strict conditions.
28. There are some contradictions in the statement given by the prosecutrix. For instance, in the complaint, it was categorically mentioned that the accused was known to the victim for the last 2-3 months and was in a relationship with him. It was also mentioned that, on an earlier occasion, when their parents came to know about their relationship, the matter was compromised. The victim had not complained that the accused had forceful physical relations with her. It was alleged that he tried to make physical relations with her.The victim has, in her statement recorded on 22.11.2022, denied giving any such statement.
29. Undoubtedly, in a case where the prosecutrix is under the age of 16 years, her consent is of no consequence. It is also not in doubt that, to hold a person guilty for the commission of offence of rape, even a sole testimony of the prosecutrix is sufficient, provided the same inspires confidence and is found to be absolutely trustworthy considering the nature of the evidence of the accusation. The testimony, at this stage, does not appear to be totally reliable and would be tested during the course of the trial.
30. It is also argued that the age of the prosecutrix was above 16 years, and the fact that she had refused ossification test clearly shows that she was not a juvenile at the time of the incident. Further, no document has been produced to show the correct date of birth of the prosecutrix.
31. In the present case, the investigation is complete and chargesheet has also been filed on 07.10.2020. The evidence of the prosecutrix is also stated to have been recorded by the learned Trial Court.
32. Considering the aforesaid facts and the fact that the applicant is in incarceration for the last more than two years, the charge sheet has already been filed, and the statement of the prosecutrix has already been recorded, I am of the opinion that the applicant is not required to be kept in further custody.
33. From the totality of facts, it cannot be assumed that there is reasonable apprehension that the applicant would tamper with evidence, interfere with the trial, or flee from justice. Even otherwise, the apprehensions, if any, can be taken care of by putting appropriate conditions.
34. Without considering further the merits of the case and keeping in mind the facts and circumstances of the case, I am satisfied that the applicant has made out a case for the grant of regular bail. The applicant is, therefore, directed to be released on bail on furnishing a bail bond for a sum of ₹50,000 with two sureties of the like amount to the satisfaction of the learned Trial Court / Duty Metropolitan Magistrate, subject to the following terms and conditions: i) The applicant shall upon his release provide his mobile number to the concerned IO / SHO and keep it switched on at all times and also drop google pin giving his location to the concerned IO; ii) The applicant shall not take unwarranted adjournment and attend the Trial Court proceedings on every date; iii) The applicant shall not leave the city without informing the concerned IO / SHO; iv) The applicant shall not in any manner contact the complainant/prosecutrix or the witnesses; v) The applicant shall not leave the country without permission of the learned Trial Court; vi) The applicant shall not reside or visit the locality where the prosecutrix resides; vii) The applicant is directed to furnish a proof of residence where he shall reside upon his release, which should be at least 5 KM far from the locality where the prosecutrix resides, subject to the satisfaction of the learned trial court.
35. In the event if the applicant is found to be violating any of the conditions, it would be open to the State to seek redressal by filing appropriate application for cancellation of bail.
36. It is also made clear that the observations made in the present case are only for the purpose of considering the bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
37. The present application is allowed in the aforesaid terms. AMIT MAHAJAN, J MARCH 3, 2023 “SS” / UG